Stopping judges from legislating - The Daily of the University of Washington

Fun diversion from having to read more International IP Law or International Merger & Acquisitions stuff. But this is one of those articles that I read in the morning and which I then find hard to restrain myself from posting some kind of reply because of its sheer inanity and utter wrongness of it all.

I would say that I don't think a non-lawyer is necessarily barred from comment on, much less very intelligently on legal matters and issues, especially when it comes to policy. But law isn't just about outcome but also the legal reasoning behind the outcome and I personally think this is one article where the author is seriously out of her depth. If you wanted to write an article on judicial activisms and restraint and the idea of fidelity to law, at the very least run it pass a lawyer or given the slant she wanted to take, someone from the Federalist Society.

I'm tempted to do a fisking but I'll refrain from it unless someone is really really interested in the multi-level reasons for why her entire article is wrong.

One hundred fifty years ago, the Supreme Court passed a decision regarding a black slave named Dred Scott, declaring his suit for freedom invalid. The court ruled that because he was of black African descent, he was not allowed to be free, nor did he qualify for citizenship.

The decision not only violated the Missouri Compromise, a piece of legislation that ensured the freedom of slaves in the North, but it even cited the Fifth Amendment, saying that judges had no right to take property from its owner without “due process.” Scott was the property.

Today, Americans look at this court decision and ask themselves, “How did the courts get away with it?” It’s clear that the parts of the Constitution the justices were using didn’t really speak to the case, and the ruling invalidated an existing law. Not to mention it took the bloodiest war in American history — the U.S. Civil War, with more than 600,000 deaths, about 200 times worse than the Iraq war — to nullify the decision.

Although the heart of the Dred Scott case was the abolition of slavery, the crime of the court was its direct disregard for the legislature and its laws. This ruling was one of the first of many judicial tyrannies. However, few, if any, judges are prosecuted for their crimes.

Judicial tyranny is often defined by a judge’s abuse of power. Often this is seen in decisions either to enforce convictions without any support of the law or to write laws from the bench.

Today, interest groups who use corrupt judges to circumvent the legislature frequently cover up issues of judicial tyranny. Organizations like the American Civil Liberties Union (ACLU) quickly learned that it’s difficult to persuade large governing bodies to support their bills, but with the court systems it only takes a few high-paid lawyers and a couple of biased judges to make a law. This approach completely undermines the balance of powers.

Constitutional framer Alexander Hamilton said in Federalist Paper No. 78, “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” Hamilton, like the other framers, was greatly concerned with the power of judges. He says the courts have “neither force nor will,” which is to say they should exist as judges, not legislators or even executioners.

In 2005, the Ninth Circuit Court ruled against parental rights, making it unlawful for students to be removed from sex education programs in school. It was a blatant example of judges making laws without any voter or legislative support. This decision was made shortly after the same court banned the Pledge of Allegiance.

In response to the consistent abuse of power, Republican lawmakers tried to split the court, which is the largest of all the U.S. circuit courts, into two, creating a 12th Circuit Court. Democratic Speaker of the House Nancy Pelosi accused Republicans of “attacking an independent judiciary.” She’s right, and thank God somebody is doing it. If a lawmaker is accepting bribes, you throw him out. If a police chief is breaking the law, you throw him out. If a judge is legislating from the bench, you defend him and ensure he can continue to abuse the law? It’s backward, and I’m sure Democrats would agree if the corrupted courts weren’t so helpful to their policy-making.

Federal courts aren’t the only ones that have turned their mallets into scepters.

Massachusetts was the first state to legalize gay marriage, but at the time pollsters found that only 30 percent of the state actually wanted gay marriage, according to a Washington Times article. Special interest groups pushed the law by suing the government, and Massachusetts congressmen were ordered to write the law.

Such interest groups have a history of abusing our government processes. In fact, the first actual legislative decision in the country that has progressed toward gay marriage was Gov. Chris Gregoire’s recent bill, which allows certain privileges to gay couples. Even though you may disagree with the decision, you have to be thankful that it was made legally.

No matter how just the cause may seem, the function of the court cannot and should never be legislation; otherwise, we end up with situations like the Dred Scott debacle. Lawsuits should not be a substitute for thoughtful lawmaking. We need to stop supporting organizations that circumvent the legislature and start supporting our own right to vote.

I'm going to first blockquote a comment because I make a reference to it....

You can accuse judicial activists of creating problems by not showing judicial restraint, but the same can be said for judges who refuse to consider that the founding fathers may have intended our constitution to change with time.
Plessy v. Ferguson was a decision that clearly had roots in the principle of judicial restraint, but in retrospect it caused over 60 years of segregation. Not until Brown v. Board of Education (one of the "best" activist rulings), were blacks prompted to believe that they had a legal right to attend un-segregated schools.

Even the Dred Scott decision had a positive effect - it helped people realize how crazy and immoral slavery was, sparking the Civil War.

And this is my comment in full.
I think Alex generally hit the nail on its head here with his point about Plessy. And with regards to slavery, there was the pesky problem of the Fugitive Slave Act and the fact that slaves counted as 3/5 of a person (and Native Americans weren't counted at all) and the ability of the Federal Government to nationalize the various National Guards to put down slave revolts etc.

I would just add that Ms. Flint's notion of judicial legislation and activism and judicial restraint are pretty much empty buzzwords because there is no ground upon which one can reconcile her statements with her own notion of separation of powers.

The Supreme Court honestly believed that its decision would defuse the pre-existing tension, Dred Scott was a product of its times and stands as a classic example of what Professor Jack Balkin would call "The Problem of Constitutional Evil" in that the Constitution sanctioned the institution of slavery and it was understood by all the states that this was the case. So under Ms. Flint's notion of judicial restraint, this is precisely what the Supreme Court should have done. Anything else while morally right would not be exactly lawful.

It would thus appear that her idea of judicial activism is either a) the decision is not one she likes (Dred Scott) or b) is against majoritarian will (Massachusetts and presumably the Hawaiian Supreme Court on the issue of gay marriage) both of which reveal a profound misunderstanding of the role of the US Supreme Court as guardian and final adjudicator on the meaning of the interpretation as well as what the Constitution represents i.e. an anti-majoritarian document. This explains the electoral college, the entire system of the two houses of Congress (Senators were only directly elected recently) and the Bill of Rights. On the last, a more individualist notion of rights could scarcely be imagined.

If a law is contrary to the Constitution, it is null and void and the function of the Court is to point that out and strike it down. Thus, if marriage is a right (as it is) regardless of one's sexual orientation (which is where the debate lies), then it does not matter the extent of popular opposition to it. By way of example, in the case of Palmore v Sidoti, Burger CJ said that the court could not give effect to private prejudices and give custody of a child to the father simply because the mother was entering into a mixed marriage. Or perhaps even more analogous would be the case of Loving v Virginia which finally struck down anti-miscegenation laws, laws that were created, sustained and justified on ground remarkable similar to those used to sustain anti-gay marriage laws. And they were all validly enacted by democratic legislatures and massively popular. I would be very interested to know if Ms. Flint would consider the Lovings (or the NAACP in its push to integrate public schools) to be one of those "special interests groups which have a history of abusing our government process".

If Ms. Flint really wanted to attack special interest groups, perhaps she should consider the idea of legal standing of corporations to sue for Constitutional violations which was created almost as an afterthought by the Supreme Court and has been used to great effect by them. But even that would be a logical fallacy because it's simply a blatant appeal to emotions without any real justification for why it is right or wrong, or good or bad.

There are much deeper philosophical underpinnings to what constitutes fidelity to law, and whether one can necessarily achieve it from an objective point of view. But it's a crying shame that Ms. Flint would label judges who she disagrees with as "corrupt" without even attempting to demonstrate how they were even necessarily wrong. Now that is really wrong.

Peace.