Activist Judges

There's been a lot of talk lately, both in Canada and the US about what people call Activist Judges. People of all political and social slants seem pretty much in agreement that Activist Judges are a bad thing. Where they're somewhat less certain is exactly what an Activist Judge is.

To the best of my ability to determine, an Activist Judge is defined as "any Judge who makes a judgment that you, personally, disagree with." More precisely, an Activist Judge is any judge who makes a decision contrary to the personal opinion of those with the loudest voices.

Nowadays, you barely hear of any court case where someone wasn't accusing the judge who made the ruling of "judicial activism," or "legislating from the bench."

Let's consider this for a moment. Webster's defines "legislate" as: "To make or enact laws."

Okay. That officially makes "legislating from the bench" impossible. No court in the United States (or Canada, for that matter), including the supreme court, has the power to create laws. They can overturn laws, based upon the facts presented before them, but they cannot create them.

To me, a good legal decision is defined as one where, upon reading it, you cannot tell what the judge's political leanings are. If you can read a judgment, and you have no idea upon reading it whether the judge is a conservative or a liberal, democrat or rebublican; that's a sign of a well-crafted judgment.

Take the Canadian Supreme Court decision which led to Bill C-38 for example. That, in my view, was a good judgment. They made very clear that Bill C-38 could be passed by the federal government, provided that freedom of religion was protected.

Take the recent idiocy of the Terri Schiavo affair in the United States. A Florida Judge announced that it was the right of the husband to make decsions regarding the health of his spouse. Congress didn't much care for that decision (particularly since it would piss off the Republicans' Pro-Life base), and immediately passed a bill of attainder such that the federal courts could act, if they so chose, in this one specific instance, for this one specific person. Ignoring, for the moment, that bills of attainder aimed at one specific person are specifically prohibited by the American constitution; the federal courts basically said: "it's not our affair," and sent it back to the state level. Nice to know my tax dollars are being well spent by congress.

In both cases, the judgments were, in my view, sound. And in both cases, someone rose up to scream that Activist Judges were "legislating from the bench."

Well, in the interest of historical perspective, I offer here a few other cases where judges have been accused of Judicial Activism:

Roe v. Wade
Loving v. State of Virginia
Brown v. Board of Education

I'll let you look those up yourself; but when you do, consider the fact that these, cases, too, brought forth accusations of judicial activism. The unelected judges are legislating from the bench, people insisted. The Supreme Court is filled, they insisted, with Activist Judges.

If we define "progress" to be equivalent to "activism," maybe they're right. If and if we can agree that progress really isn't a bad thing, maybe we can agree that judicial activism maybe isn't such a bad thing after all.