What IS "judicial activism", anyway?

Go ahead, try to define it. I dare you. If you can, then I want to see you put a shoelace through the eye of a needle. You can’t do either.

First, read John Dean’s article on this subject. Yeah, I know he wrote Blind Ambition(which I actually read, along with Haldeman’s book, when I was in college). And I know the whole Nixon connection. Forget that. The article is fantastic, and Mr. Dean is exactly correct in his analysis. Let me take a cue from his article, and comment on the critically important points.

Mr. Dean cites to a work by Keenan Kmiec (who was a clerk for Justice Samuel Alito), which was a comment in one of the 2004 editions of the California Law Review. For those of you who have not been to law school, a “comment” is a short article or essay, not a full-blown law review article, and is usually written by a younger 1L or 2L, or a community contributor. They are just as scholarly, but not as long. Ok. The Kmiec comment is not online, or the link from Dean’s article is broken. The bLAWgger team is trying to find the article and will post it later.

Kmiec reviewed usage of the term “judicial activism” in judicial opinions, law journal articles, and the general news media, and found that the phrase has at least five core meanings, and is used essentially as a “charge” – that comes from the negative connotation associated with the term. The “charge” has been lodged when, according to the speaker, the court at issue has (1) invalidated an arguably constitutional action by another branch; (2) failed to adhere to precedent; (3) legislated from the bench; (4) departed from accepted interpretive mythology; or (5) engaged in result-oriented judging.

I always defer to those who are smarter than I, which is virtually everyone except Makholm and Skippy. I hereby adopt the findings of Kmiec, as neither Mr. Dean nor I have identified any other times when the charge of “judicial activism” rears its head.

WHY THERE IS NO SUCH DAMN THING AS JUDICIAL ACTIVISM

Let’s take each possible accusation, and turn it into real life. Again, I practice in the trial and appellate courts EVERY DAY. I am not a “former” lawyer turned commentator (not yet, anyway), and I am not an inexperienced law student, nor a politician who has never stepped foot in a courtroom. I am LEGEND, baby.

CHARGE 1: “invalidated an arguably constitutional action by another branch”

This is what courts are supposed to do. Fix illegal laws. Judges do not simply invalidate laws because they don’t like them. If that were the case, I know some judges who would strike the right to remain silent and presumption of innocence in the blink of an eye. But there are times that legislators miss the mark: a law that violates proper drafting laws (like in Florida, where we have the “single subject” rule – can’t put more than one law per subject into a bill), violates the state or Federal constitution, or invades the rule-making power of the courts. The last one is tricky to understand: the courts (usually the Supreme Court of each state) make their own procedure rules, and the legislature cannot tell the courts how to run themselves. But they try, oh, do they try. From a practical standpoint, this is a rare procedure, and there are procedural rules in place to get these types of cases to the Supreme Court for a final ruling. And there is always the opportunity for amicus curie (“friend of the court”) briefs by all the interested parties, so that the court has input to consider from all the sides of the issue.

CHARGE 2: “failed to adhere to precedent”

All judges, attorneys, and law students know about, understand, and adhere to stare decisis. Precedent is case law from other courts that guide the court in deciding the issue before it. A charge of failing to adhere to it is saying the judge is a rogue who, after having been presented with clearly controlling case law, acknowledged it and its controlling nature, and ignored it. I am here to tell you, from a practical standpoint, this does not happen. Why? Because the judge knows that he or she will get REVERSED ON APPEAL. Judges don’t want to get an negative opinion from the higher court, possibly commenting on how blatantly obvious the error was (essentially calling the judge stupid). So, judges do not openly and obviously ignore precedential law.

CHARGE 3: “legislated from the bench”

This is just a battle cry of whichever side is against the nomination of whatever judge they don’t like. It is an oxymoron in and of itself. Like saying a legislature “ruled in favor of the defendant from the Senate chamber.” It just cannot happen. Judges cannot make new laws. Separation of powers, all that, remember. So don’t use this phrase – you will sound like an idiot, and you cannot give one example of such an action.

CHARGE 4: “departed from accepted interpretive mythology”

I guess this means that the judge doesn’t apply the old law school IRAC process (issue, rule, analysis, conclusion). Most judges do not so depart from the accep….. whatever. I can tell you this: most attorneys do not give their motion and case law to the judge in advance of the hearing, and most judges who get advance copies don’t read and prepare for the hearing anyway. Some do, and do a fine job of reading your case law and researching the issue on their own. But most don’t, and it is obvious when they have not read it. So, lack of preparation in the trial courts can be an impediment to getting proper rulings. But not departing from the “mythology.” By the way, because of the way the briefing process in appeal cases works, this NEVER, EVER happens in appeal cases.

CHARGE 5: “engaged in result-oriented judging”

Ok, this one I have a problem with. I have seen judges bend over backwards to deny motions in cases where the charge was bad (murder, trafficking, etc) or when the defendant had a bad record. I have seen creative interpretations of case law, and judges who are not willing to take a chance and make a ruling in favor of the defendant where it was a close call. Most judges side with law enforcement when the case is close; after all, it is easy to side with the “good guys” and not the “bad guys” in the eyes of the community who will be voting for you again in the next election!

The other time I see this is in appellate courts “per curiam affirmed” decisions. This is affirming (also known as “you lose your appeal, Mr. Defendant”) without an opinion as to why. Just three words: per curiam affirmed. The appellate attorney spends countless hours culling the record for errors, preparing the brief, pleading for relief and explaining why case law precedent mandates reversal. The attorneys and judges engage in oral argument (usually out of town, where the attorneys travel to the court). The staff attorneys and clerks for the judges spend hours reviewing and research the parties’ briefs. All for a 3-word ruling. That is just not fair!

It can be argued that in both the trial and appellate courts, there is a degree of intellectual dishonesty. However, this is not “judicial activism.” Surely it is not an accepted practice, but it does not make the judge one who is a rouge and not to be trusted by a particular politically ideological side.

CONCLUSION

The “judicial activism” battle cry of some disgruntled litigant or politician turns out to be little more than a “rhetorically charged shorthand for decisions the speaker disagrees with” (to quote Kermit Roosevelt III in The Myth of Judicial Activism, Yale University Press 2006).

Rather than making an empty accusation, one should review the record of a judge, read the judges opinions, talk to the attorneys who practice before that judge, in order to make a real decision about the judge. Just like everything else in life, information is power.

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