Skip to comments.Judicial Activism = Judicial Tyranny
Posted on 01/06/2005 6:10:07 PM PST by wagglebee
I don't want to pick a fight with Chief Justice William Rehnquist for whom I have great admiration, especially when he's gravely ill, but he just wrote something with which I cannot agree.
So here goes.
In his traditional year-end report on the federal courts Justice Rehnquist wrote that judges must be protected from political threats, including those from conservative Republicans who maintain that "judicial activists" should be impeached and removed from office.
"The Constitution protects judicial independence not to benefit judges, but to promote the rule of law: Judges are expected to administer the law fairly, without regard to public reaction," the chief justice wrote.
The public, the press and politicians are certainly free to criticize judges, Rehnquist added, but politicians cross the line when they try to punish or impeach judges for decisions they do not agree with.
Fair enough, but what bothered me was his attitude that judicial activism deserved some kind of heavenly writ placing judicial opinions, no matter how wrong-headed, beyond reproach. What he seems to be saying is no matter what the public wants in any particular matter a judge's opinions prevail even when the opinions are based on nothing but the judge's personal far-left preferences instead of constitutional law.
Over the years we have had non-elected federal judges usurping the authority of elected local school boards on the most specious of grounds, involving themselves in the actual supervision of school districts. There's not a damn thing in the Constitution that confers such authority on their honors, but they get away with it nonetheless.
In Kansas the State Supreme Court has just ruled that the state legislature has failed to provide adequate funding for the state's public school system. and ordered it to come up with more money for the schools, or else.
Lawmakers were given until April 12 to fix the problem of insufficient funding or face court action but did not specify how much more money is needed to adequately fund schools..
"Its failure to act in the face of this opinion would require this court to direct action to be taken to carry out that responsibility," the court ruled. "The Legislature, by its action or lack thereof in the 2005 session, will dictate what form our final remedy, if necessary, will take."
Their logic for this usurpation of the legislative power of the elected officials: The state's Constitution requires that the Legislature make "suitable provision" for financing education. The court ruled that, in commissioning a consultant's study on school finance, the Legislature defined suitable, then ignored the consultant's recommendations to increase funding.
Pardon me, but isn't that what the voters elected them to do - to decide what is suitable? If the public wants to spend more money, or for that matter less money, on schools isn't it up to their elected representatives to take care of the matter? Nobody elected the justices to decide how much funding is enough. Frankly, it's none of their damned business.
In recent weeks the nation has endured a raging controversy over the celebration of Christmas. In a nation where about 90 percent of the people are Christian, we have been treated to a spectacle of having hordes of lame-brained school and municipal officials taking a pick axe to our Constitutionally ordained right to practice our faith in the public square.
The anti-Christmas barbarian hordes hide their true aim - to drive Christians into the catacombs - under the guise of protecting the doctrine of separation of church and state - a doctrine that does not exist in the United States Constitution or anywhere else but in the fevered minds of the almighty justices of the federal judiciary.
They simply invented it, using the prohibition of establishing a national church to contradict the second part of the First Amendment: that Congress shall enact no laws prohibiting the free exercise of religion in or out of the public square.
So when did this miraculous wall of separation between church and state get built, and who built it? As David Limbaugh wrote in his extraordinary book "Persecution" the architect and builder was Justice Hugo Black who wrote in the majority opinion of Everson v. Board of Education that the "First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."
Clearly, it was not the founding fathers who used the First Amendment to build the wall. It was Hugo Black.
This is judicial activism of the worst kind - activism based on nothing but the warped opinion of a Justice of the Supreme Court and a whole slew of out-of-control tyrants in black robes who have followed in his wake.
Black's opinion is fiction. It has no basis in the Constitution and his fellow justices and those who followed them know that. And they should be roundly condemned for not saying so in unmistakable terms and acting on that belief.
Yet as David Limbaugh points out, the Everson decision, in the words of Professor Daniel Dreisbach "laid the foundation" for later First Amendment cases involving released time, school prayer, and "the continuing controversy over religious expression and instruction in the public schools" and other lines of cases.
In his article "We the Judges: How Judicial Activists Rewrite the Constitution," CBN.com Congressional Correspondent David Brody wrote that "there is a real and tangible concern about what is being called 'judicial activism.' Many conservative legal scholars say judges today are making absurd rulings based more on their liberal thinking than what the Constitution actually says."
"How did we get to this point and what can be done about it?" he asked, explaining, "In the beginning, our Constitution reads, 'We the people.' But the way the courts have been ruling recently, many legal scholars say it could very easily read 'We the judges.' "
He reports that Judge Robert Bork has said, "The problem is very grave because what you've done is take away democratic control of the culture."
Bork , who has led a campaign against judicial activism, believes that too many judges are making laws instead of interpreting them, and that is not what the Founding Fathers had in mind. He explained that "[The judges] are steadily enacting what you might call the liberal cultural agenda."
For example, the Supreme Court has ruled that Americans basically have a constitutional right to commit sodomy - a right judicial experts say can not be found anywhere in the Constitution.
Moreover, Brody notes that the one case that still has legal scholars scratching their heads is the decision 30 years ago to legalize abortion.
Of that atrocious opinion Bork said , "Fifty-eight pages: no legal argument in it. You learn all about the Egyptians practice with respect to abortion. You learn about the English common law with respect to abortion. You learn about what the opinions of the American Medical Association are, and all of a sudden, bang, there's a right to abortion."
So what does Justice Rehnquist say is a remedy for this curse of judicial activism? Why, simply challenge misguided rulings by appealing them a higher court. "The appellate process provides a remedy" for those who believe a judge has erred, he said.
He ignores the fact that those "higher" courts, including his own, are loaded with judicial activists.
Pick the fight - this is an easy one.
If judges cannot respect the separation of powers they MUST be impeached.
I didn't forget the Second Amendment. There are just too damn many areas to even get started.
" I was thinking when I read reports of what Rehnquist wrote that perhaps his mind has been affected by his illness."
I agree and that was my first thought. This is very similar to what happened with Barry Goldwater when he was real old.
The MSM could make a case that he's not fit to still be on the court - but the sure as heck should not be publicizing something like this, as it deviates from everything Rehnquist stood for.
Please consider helping to end the annoying Freepathon soon.
crazy or traitor - it doesn't matter - he MUST go!
He is too dangerous to our liberty and our country to leave the fool there.
Judges are expected to administer the law fairly, without regard to public reaction...
Right, the operative word being "fairly". Renqhuist appears to believe that the only improper judicial behavior is that of corruption.
If I had to guess, I would say that Rehnquist has already informed Bush and the other justices of his retirement, they are just waiting until after the inauguration to announce it. It will be interesting to see who swears Bush in two weeks from now. And if I am correct, this also means that Gonzales WILL NOT be appointed to the Supreme Court.
Agree with everything. I think Rehnquist was waiting to make sure that nothing came of the election challenges. He knows that he must leave.
While judges are useful, they clearly need to be rotated....I'd say on the same schedule as senators. If we've ever had demonstration of Lord Acton's famous quote, we've surely had it in democracy's oligarchy, it's unbridled, unreined, UNELECTED, UNDEMOCRATIC judiciary.
The problem is that a "rotating" federal judiciary would make the judges even MORE PRONE to making rulings based on political ideals. The purpose of a lifetime appointment is to take politics out of their rulings; however, the activist judges use their position to become even more political. I think the real answer is to impeach judges who blatantly disregard the law simply to advance an agenda.
I'm wondering, given such abominations as the 9th circuit, if there's not a role sometime soon for judicial reConstructionists. Beyond constructionists or objectivists, judges who who will always reject stare decisis in favor of a constructionist interpretation.
If the activism goes on much longer, like termites in the center-beam, it's going to corrupt the edifice of law in its entirety, and will need massive upheaval to return to a semblance of what it was intended to be. The short-term shake-up inherent in a full reevaluation of non-constructed opinions will prevent a longer, langorious decline.
Thomas, I think, leans in this direction, although not so stridently. Maybe we really _do_ need more of those 'conservative' judges. I bet they'll be called 'reactionary', because it's certainly that - a reaction to the dumb-ass things activists have done to date.
Rotating them via election recognizes that they are partisan. It provides a means for regular, thoughtful course correction.
Hell, we couldn't even impeach a sexual predator when even his supporters were acknowledging he committed perjury.
Agreed - that's why the Dems have to be disposed of (politically) prior to cleaning up the courts.
If judges want to engage in political chicanery, let them run for political office. Otherwise, keep the hell out of politics and interpret the law as written and intended, period.
If we elected federal judges, the leftists on the west coast would basically be able to insure that the 9th Circuit stays activist forever. At least now we have a chance that Bush or another Republican would have the opportunity to appoint a law-abiding judge to that court.
I agree that careful thought would have to go into the design of courts, their regions of coverage, and how they are elected.
bump for later.
Well arent many judges across the country also politicians ? They have to go out and get votes and they declare a party affiliation.....
how can you draw a construction from the founders when the very basis of the question had not existed at that time- stuff like cloning, or wiretaps, or software patents?
What happens when legislatures overstep their bounds?
Who is to defend the people then ?
I dont like activist judges either, but there are bad laws written all the time....
And what about way-right judges with the same bad attitudes ? I mean, there are those who think that women should have to obey men, no fun on Sundays, etc.
The right to bear arms will never, ever, ever, ever be taken away from Americans.
"The right to bear arms will never, ever, ever, ever be taken away from Americans."
I believe that long ago an activist Supreme Court stated that the Second Amendment applies only to state militias.
Don't think for a moment that our right to own guns will be protected without our vigilence. There are many, many, people who cannot stand that right, and to heck with the Constitution for them.
Im not sure we should call all jurists with opinions that we disagree with "activists"- I mean, a ruling has to DO something, so EVERY judge is activist in a way....
While I agree that we must never stop protecting our right to bear arms, I'm comfortable that there is no way Americans will let a minority overhaul that right- even the leftys that I know agree with that....
I'm not that clear about the greater legitimacy of the states over the federal laws/courts. Could you not extend that to each county, or even municipality? Is the locus of rightness greater if the rules are more and more local ? The events of 1859-1865 showed that some disagreements can be so strong that only the largest authority may properly prevail. Lincoln's Cooper Union speech is probably the best stated case ever regarding what we must do when we believe ourselves to be right...
I can't match your history - although I do believe that Cooper Union still doesn't charge tuition (big endowment).
Slavery was an exception, and I think we were well on our way to extinguishing it without help from activist judges. Same with civil rights.
My question is regarding NOW: What issues is our elected government behaving so immoral on that the courts need to step in? (I hope that I don't get deluged)
My history is not all that strong, but I'm into Lincolnalia because it was such an extraordinary time. Dont think Slavery was on its way out- it most certainly was not. If hundreds of thousands of Americans would fight to the death for it, it was not going anywhere....
In fact, the last four years have kind of freaked me out because the Red/Blue map looks awfully like the 1861 map of America...both sides are certain they are right....
And although I can imagine terrorists hurting us real bad, they can't ever win- they can't destroy America no matter what (although we should not forget that Russia and China could really do a number on us with nukes)
But if we slip into fear driven Totalitarianism, we could do it to ourselves.
I really have to disagree with most posters on FR that torture is wrong: we didnt have to torture nazis, we didnt have to torture Japanese, and we didnt have to torture Russians during the cold war, and those were all terrible threats too.
The case where we get a guy who really knows where a hidden ticking nuke is is not really gonna happen, and it has nothing to do with running everyday torture houses.
Speaking of, thats what our jail system is in many cases, and its our own people, many cases for just drugs, which is another moral issue... but dont get me started...
you forgot the very important second clause to the line about the powers going to the states- that they also devolve to the people, hence my question about the locality issue.....
You've worn me out - we'll have to just disagree.
Funny, thats what my wife says too ;-)
I agree - my point being that if there are enough votes to impeach, then the judge should be impeached, since he obviously ticked off a lot of people in a very important way.
I agree. Judicial protection was implemented to grant judges protection from ever shifting public opinion so that they could concern themselves with matters of law. However, we've seen how this type of power with complete impunity breeds arrogance, and gives way to judicial activism. We, as a people, must pursue these violators of the constitution. We need to show them that legislating from the bench will not be tolerated and will lead to their removal.
Im not a scholar or lawyer either, but it seems to me that the civil war settled that the federal law must prevail, that the states may not overrule that authority.
It also seems to me that the founders very clearly felt that "rights" mean anything that a person wants to do that does not harm his fellows is allowed. So in fact, Judges can't "find" or "make" NEW rights- they can only decide that some actions harm others and thus must be controlled.
I know others think that we only have those rights defined by the Constitution, but I think thats ass-backwards--
We have seen the Judiciary display a flagrant disregard for the ideals laid down in the Constitution, and their arrogance now has them proclaiming themselves the overseer of Congress, and our Congress does nothing about it.
That some of the present day justices should be impeached goes without question, but that alone will not stop a future justice from becoming a rogue.
The terms of all federal judges should have limits. No human being should be given a lifetime appointment to a position of power without accountablity. The temptation is too great, and we've seen its results.
Klinton was impeached just not convicted.
Big problem with that impeachment; wrong issue.
He should have been impeached for his treasonous involvement in the ChinaGate scandal. That was a real issue.
"The right to bear arms will never, ever, ever, ever be taken away from Americans"
You will be amazed at the 99.9% rollover and drop their pants rate when the critical mass moment of push comes to shove of confiscation.
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