Saturday, September 01, 2007

Activist Judges

Activist Judges

Missouri is on the brink of insanity (once again). A few years back, social conservatives worked to get the gay-marriage ban on the ballot so it could be there the same time as the governor's election. What they discovered was these key issues would help pull more social conservatives to the poll to vote against gay marriage, and ALSO to vote for the social conservative candidates. So, with the governor up against it, and several Republicans reeling from defeats in 2006, Missouri social conservatives are taking on "judicial activism."

What is judicial activism? Basically, when you disagree with a judge's decision, that judge is an activist. So, stick with me on this, if the Supreme Court overrules Roe v Wade (for right or wrong, IS the law) wouldn't those judges be activists? What if judges find that teacher lead prayer in public schools is alright? That would overturn several court decisions. Okay, you can say the Roe and school prayer decisions are based on opinion, not law. Fine. Then, when the 1954 Supreme Court overturned several laws based on the Plessy decision, and overturning legal segregation, wasn't that activism?

I've heard people suggest that judges need to follow the will of the people. I disagree. This is how it works. The people create a constitution. The legislature passes bills and crafts constitutional amendments and governors or presidents sign those bills into law. Those bodies are elected by the people and beholden to the people. In the case of constitutional amendments (at the state level) the people get to directly vote on the issue. So, there's you're public check. I'll come back to that. When it is time to interpret the law, or interpret a dispute when people have different points of view about an issue, the judiciary decides those issues. That is, based on the laws and constitution that the people have passed. NOT the laws that people hope were on the books. NOT the constitutional amendments that SHOULD be there. The legislators and the executive are beholden to the public. Legislators and executives can be swayed by the whim of the public or the money that comes with strong special interest. I think that goes without saying. What the judiciary does is check the "flavor of the month" approach to public policy that you find among the elected officials. You must have an independent judiciary to check this.

So, how do you get judges to find "your" way? Change the constitution. The problem? It is a lot more difficult to change the constitution and to get the broad support required to change the constitution than it is to make a law.

This leads to social conservatives attempts to overturn the "Missouri Plan." This would be a huge mistake. More on that to follow.

There you go, Tom.

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