Judicial Activism, my two cents

So apparently the term "judicial activism" has been on the GOP's talking points for a while now, and it seems to be a gut response by the president when any question regarding his choices for the judicial branch is posed. So I'd like to give a little context on this whole issue.

In the United States we have "common law" which is the same "system" as India, Australia, or any of Britain's old colonies. We inherited it from the good 'ol UK. This is distinguishable from "civil law" which is practiced in continental Europe and most of its old colonies. Common law, in its origin, is actually judge-made law. Back in the day it was judges who literally made law. For example, our standards of negligence, as well as various laws around property rights were made, not by any elected body, but by judges with actual cases and controversies in front of them. In contrast, the civil system stems from the Napoleonic Code, where everything was "codified," meaning laws were put into the books and all judges were supposed to do is interpret and apply them. These days, however, the distinction between the two systems has become somewhat blurry as the U.S. and its states and cities have created huge volumes of statutes, ordinances, and penal codes, which judges are, much like in the civil system, are only supposed to interpret. But we must remember that our origins are in judge made law, and various judicially made doctrines still exist and are still being created even within the vast statutory framework. So, for example, eventhough it's not written anywhere, various doctrines such as collateral estoppel (an issue already decided in a case, can be used in another case involving at least one of the same parties) appear in decisions everyday.

Now when the president derides "activist judges," it is usually in the context of constitutional law, primarily abortion, gay marriage, etc. Constitutional law is, by definition, a limit to what the other branches of government can do; the courts will tell the government what they can't do, not so much what they MUST do, but the line between these often blurs. In Brown v. Board, for example, the outcome could either be phrased as "states can't segregate based on race" or "states must desegregate their schools;" the latter is probably more accurate but only because the status quo at the time was segregation, the very practice to be found unconstitutional. When you read an article that says the Supreme Court "legalizes" abortion, for example, that's not actually accurate. All abortion cases come from state laws that try to prohibit or limit a woman's ability to abort her unborn child. States have put on parental notification requirements, that doctors performing abortions must have special forms of credentials, or mandatory waiting periods. What the Supreme Court decides is whether a state can pass laws like these, in light of the fact that they have previously held that a woman's right to choose is constitutionally protected. They do not"legalize" abortion, they decide to what extent a state can limit a constitutionally protected right.

Some might argue that finding the right to abortion in the constitution is in itself "activist." This is more accurate in the sense that the word "abortion" is not in the constitution. But neither is the right to contract your own labor, right of access to birth control, right to choose what kind of school you want to send your kids to, all of which have been held to be "fundamental rights" that states cannot impede upon. The beauty, if you will, of the constitution is that it was intended to evolve. So as we mature and develop as a society we must adjust our definitions of what is fundamental and what is not. This does not mean reading complete nonsense into the constitution, but it does mean that when we consider what is cruel and unusual punishment we should not limit ourselves to thinking about what the authors of the constitution might have meant (the rack, scarlet letter kind of things). So when judges are considering whether states have the right to prohibit gay marriage, they must consider whether the equal protection clause covers this area, both in the intent of the framers as well as our modern mores. This is not "activist," this is their job. We might not agree with what they come up with, but that doesn't make them activist.

That said, it also seems that judges get fingered as activist when they simply write a decision that the administration doesn't agree with. For example, when the 9th circuit held that the "under god" part of the pledge of allegiance violated the Establishment Clause. This is "activist" (nevermind the author of that opinion was a Reagan appointee). With Terry Schiavo, however, the GOP controlled Congress gave federal courts jurisdiction to hear the appeal. Federal courts have limited jurisdiction and normally are not allowed to hear appeals based in family law, which is traditionally within the purview of the states. Despite the fact that Republicans are supposed to be pro states' rights, they gave the federal courts jurisdiction to hear THIS ONE PARTICULAR CASE. Now I'm not saying that that whole ordeal was not sad, but if I have ever seen any judicial activism, this is it. These are the congressional republicans telling the judges to hear a case they wouldn't normally have been able to. The Federal judges who dismissed the appeal, democrats and republicans, chided congress for this unprecedented intervention.

So if you've actually read this far, when you hear "activist judges," think about what they mean. They might just mean that a judge, who must interpret the law to encompass the modern world, is just doing his job. It is interesting to note that Judge Owens, who was just confirmed was being accused of being an activist judge by none other than our Attorney General Alberto Gonzales when they both sat on the Texas Supreme Court. Grain of salt people, grain of salt.