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Activist judges vs the independence of the Judicial Branch.

 
 
littlek
 
Reply Tue 5 Apr, 2005 07:17 pm
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<this is my first post to the debate forum, I hope I do ok>

This administrations has used the term "Activist Judges" many times to indicate their displeasure with judges who rule against the party politics.

I have a basic rememberance of my high school social studies class which taught that the three branches of the government were set up to ensure the health of the US's politcal system (to protect the people). The elected branches, the presidency and the legislature, were reviewed and revised by the populace periodically. But, the judicial branch was slightly above the mania of politics. Judges were appointed, they served for life, they were free-agents, so to speak. They could focus on the interpretation of the constitution without being manipulated by lobbiests or constituencies.

I'd like to see this thread explore the idea of 'activist judges', the seperation of the governmental branches, and the role of judiciary as a whole in the US.
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Type: Discussion • Score: 2 • Views: 3,023 • Replies: 16
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sozobe
 
  1  
Reply Tue 5 Apr, 2005 07:24 pm
I'm for activist judges, the way the term is usually used.

Basically, I think people are dumb. I think they elect or fail to elect politicians for the wrong reasons, and that the politicians may or may not do the right thing but that "the will of the people", as exemplified by the politicians they elect, is not necessarily the right thing.

I like the idea of having judges around to counterbalance that -- especially a system that doesn't give one specific judge too much power. Appeals, higher courts, etc.

But by the time you get to the Supreme Court, it's often right back to politics. Who appointed whom and why.

But I still have a certain respect for the system -- that was the most (the only) heartening thing about the Terri Schiavo debacle.
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littlek
 
  1  
Reply Tue 5 Apr, 2005 07:35 pm
So, isn't it more apt to call the president or the legislative branch activist? The judges are just plugging away doing what they always do.
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sozobe
 
  1  
Reply Tue 5 Apr, 2005 07:39 pm
Ah, I see your point. That's interesting. Yeah.

I think (I'm just speaking off the top of my head, there probably need to be cites and stuff at some point) that the idea is that politicians are in some sort of general bloc, representing a general bloc of people, and that judges who buck that trend are therefore activist. Using you know their own judgement and stuff.

But yeah, I personally would say that the judges basically plug along upholding laws and citing precedent, and are more likely to hold a given course as a whole than politicians as a whole. As in, if the politicians are taking things right, and the judges stay where they've been, they'll look more left -- but only within the rightward context.
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littlek
 
  1  
Reply Tue 5 Apr, 2005 07:43 pm
I expect there will be links, I hope so. I'll start looking in a bit. I don't even know where to start, really.
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littlek
 
  1  
Reply Tue 5 Apr, 2005 07:48 pm
<tinkering with the body of this thread so as to keep it in the Deabate room>
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dyslexia
 
  1  
Reply Tue 5 Apr, 2005 07:52 pm
perhaps a silly question but trying to look at the converse, what would a non-activist judge do eaxctly? I mean the very idea of "interpreting the law" is a "active" process isn't it?
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littlek
 
  1  
Reply Tue 5 Apr, 2005 07:54 pm
Dys - true....

Here's one definition of activisty judge from about.com:

"activist judges"

Glossary
Your Guide, Ryan Woodhams From Ryan Woodhams,
Your Guide to Conservative Politics: U.S..

Definition: A criticism of judges who allegedly ignore precedent, written law, or federal or state constitutions to arrive at a decision that they personally want. Roe v. Wade, the 1973 U.S. Supreme Court decision that legalized abortion nationally, is considered the quintessential decision by activist judges, in the opinion of many conservative court-watchers and even some pro-abortion rights, liberal legal scholars. Essentially, they argue that the justices wanted to make abortion legal throughout the nation and then found a way to do so despite flimsy legal grounds. Liberals also complain about conservative judicial activism, citing the 2000 U.S. Supreme Court Bush v. Gore decision that ended the post-election vote-count controversy in Florida.
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au1929
 
  1  
Reply Tue 5 Apr, 2005 07:57 pm
How do I put this? How many independent congress people do you think there are. The answer is none they vote not their conscience but the party line always with one eye on the next election, there biggest contributors and of course political expediency. Judges on the other hand, those appointed for life are or become independent and vote based upon their reading of the law and their conscience. The Judiciary must be independent particularly independent of the other two branches of government.
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littlek
 
  1  
Reply Tue 5 Apr, 2005 08:02 pm
Ok, so, take the ideas in the above definition (such as it is).... Activism, in judges, happens when judges make decisions knowingly ignoring legal precedent.

What legal precedent was there on the same sex marriage laws?
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littlek
 
  1  
Reply Tue 5 Apr, 2005 08:18 pm
I've been googling for links, I can't find many middle-of-the-road discussions on the subject. Most links shown are from a right-wing perspective.
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littlek
 
  1  
Reply Tue 5 Apr, 2005 08:22 pm
Npr has some programming devoted to the subject. Most of the recent stuff there is about the Terri Schiavo case, but some is more general.

This is very disturbing to me: " As some Republicans criticize "activist" judges, Rep. Steve King (R-IA) outlines a legislative course aimed at exerting more oversight of judges. "
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roger
 
  1  
Reply Tue 5 Apr, 2005 08:27 pm
A judge, Supreme Court justice, now, doesn't get (or shouldn't) labeled as an activist for overturning precedent, or even reversing itself - if the decision has a Constitutional basis.
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littlek
 
  1  
Reply Tue 5 Apr, 2005 08:31 pm
Ok....but, deciding constitutional basis is up to the judges, right?
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dyslexia
 
  1  
Reply Tue 5 Apr, 2005 08:37 pm
only if they decide it is.
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roger
 
  1  
Reply Tue 5 Apr, 2005 08:51 pm
Yes to both, of course. They are the final arbiters (Supreme Court, I mean), and as Dys says, they decide which issues the will consider.
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littlek
 
  1  
Reply Tue 5 Apr, 2005 09:16 pm
So, what business do the legislators have wanting more 'oversight' over the judges?
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