Re-Activist Judges?
For Immediate Release: The White House: Office of the Press Secretary
May 17, 2004
Statement by the President
The sacred institution of marriage should not be redefined by a few activist judges. All Americans have a right to be heard in this debate. I called on the Congress to pass, and to send to the states for ratification, an amendment to our Constitution defining and protecting marriage as a union of a man and a woman as husband and wife. The need for that amendment is still urgent, and I repeat that call today.
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From Owen in The Silicon Valley:
"Question, the problem for strict constructionists is that the world has changed and continues to change. If we relied on "settled law" much of what we take for granted in terms of rights wouldn't exist...which may be what some people want. On the other hand, only a court presence that combines respect for Constitutional precedent with an honest view of contemporary society and law can address the issues of the 21st century and maintain respect for our judicial system. Besides, at root, all law is medieval (or even more ancient, depending on who you view as source law) until somebody interprets it anew. Why is an activist a bad judge and a reactivist good?
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From an article in the New York Times by Dahlia Lithwick:
"Re-activist judges are able to present themselves as "strict constructionists" or "originalists" by arguing, as does Justice Clarence Thomas, that any case decided wrongly (i.e., not in accordance with the framers of the Constitution) should simply be erased, as though erasure is somehow a passive act. And while there is an urgent normative debate underlying this issue -- over whether the Constitution should evolve or stay static -- no one ought to be allowed to claim that the act of clubbing a live Constitution to death isn't activism.
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Phyllis Schlafly's latest!
The Supremacists: The Tyranny Of Judges And How To Stop It
The gravest threat to American democracy is the supreme power of judges over political, social, and economic policy. In this bracing indictment, Phyllis Schlafly exposes the courts’ 50-year conquest of legislative authority, made possible by presidents, congressmen, and voters who surrendered without a fight. The Supremacists is both a warning that self-government is in peril and a battle plan for overthrowing the tyranny of judges.
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From the Denver Post by Mike Soraqhan:
""Activist judges" difficult to define
As the debate on a gay-marriage ban heats up, legal experts say the term is, at best, imprecise and, at worst, used by people who simply disagree with a ruling.
Washington - Ban supporters will be blaming these black-robed rogues for pushing gay marriage onto the American stage, requiring them to push back with a constitutional amendment. "I do feel the courts are out of hand, and they've gone too far on this particular issue," Sen. Wayne Allard, R-Loveland and the Senate author of the ban, said at a forum last week.
President Bush, too, has lashed out at "activist judges." But confusion reigns over just what is an "activist" judge.
Even legal scholars who rail against them say the term suffers from imprecision. Some legal scholars say an "activist" judge is simply one who made a decision someone didn't like. "I think it's more of an insult than a philosophy," said University of Colorado constitutional law professor Richard Collins.
Others say "activist judges" are simply convenient scapegoats for gay-marriage opponents who don't want to attack gay people directly. "We heard this about 'activist courts' during civil rights," said Wayne Fields, an English professor at Washington University who studies political rhetoric. "Instead of saying, 'We don't want black people going to our schools,' we say, 'We don't want the courts making that decision."'
Conservative legal scholars, however, say activist judges are out there, eroding the Constitution and the ability of people to make decisions through their elected officials. The Massachusetts Supreme Court decision allowing gay marriage, they say, is a textbook example. "Massachusetts is a clear case of judicial activism," said lawyer and Princeton University professor Robert George. "Whether or not an activist decision is good or bad policy, it always is an unconstitutional action. The proper forum to raise these kind of issues is the legislative forum."
The gay-marriage debate highlights a long national tug-of-war over how far judges can go in interpreting the Constitution. As in Massachusetts, the argument is increasingly trickling down to state and local courts.
Generally, the "activist" label is hung on socially liberal decisions. The trend generally took off with the federal courts' role in desegregation, starting with the 1954 Brown vs. Topeka Board of Education decision, and the 1973 Supreme Court decision guaranteeing access to abortion, written by Justice Harry Blackmun.
Conservatives say the trend soared from there, with judges increasingly willing to find new rights, use tenuous theories and overrule elected lawmakers.
Desegregation and civil rights gained acceptance, giving judges a reputation in many quarters for doing what politicians lack the will to do, said University of Colorado law professor Robert Nagel. But he said rulings like those on abortion and banning school prayer inspired sustained bitterness against the courts from social conservatives.
In recent years, liberals charged that conservative jurists developed their own brand of activism, a complaint that reached its zenith when the Supreme Court handed the 2000 presidential election to Bush.
Critics of judicial activism like Princeton's George say there are plenty of examples to offend liberal sensibilities. In the first part of the 20th century, the Supreme Court was tossing worker protections. And he said the 1857 Dred Scott case, which struck down a ban on slavery in the territories, was a case of judicial activism.
"The very institution that was on the right side of racial justice in Brown vs. Board was on the wrong side of Dred Scott vs. Sanford," George said. "The power to do good is also the power to do evil."
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From Sean Cahill in the Advocate:
"Bush’s denunciation of “activist judges” is particularly rich coming from a man who would not occupy the Oval Office were it not for the intervention of a bitterly divided U.S. Supreme Court in Bush v. Gore, a ruling that ignored the will of the American people as expressed in the popular vote.
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From Patridiots.com by Poppy:
"February 25, 2004
Activist Judges?
George Bush, Bill Frist and the other right wing ideologues ludicrously blame "activist judges" for the need for a Constitutional Amendment banning gay marriage. This line of argument is not about gay marriage, but another attack by the American conservative movement on the independence of the judiciary.
The current movement for gay marriage is not a creature of the courts. There has been only one case decision in favor of gay marriage, and that was the recent Massachusetts case. Other than that, the movement has had victories with legal civil unions in Vermont a few years ago and New Jersey just last month, and San Francisco Mayor Gavin Newsom and New Mexico's Sandoval County Clerk Victoria Dunlap offering marriage licenses.
That means two legislatures and governors have signed civil union laws, and an elected Mayor and elected County Clerk have offered marriage licenses to same sex couples. Not courts, but legally elected American citizens. Courts have been used to stop Dunlap in New Mexico and are being geared up against Newsom.
This social issue is being handled by the people and not the Courts, and to blame this on "activist courts" is just an effort to minimize the size and energy of the movement. By blaming a few judges off in the hinterlands, Bush and his friends can ignore and obscure the people who support same sex marriage.
The argument that "activist judges" are destroying this country is trotted out every time the right wing is upset over some cultural case they lose. "Activist" is code for liberal, so when a culturally conservative decision comes down they are strangely silent. They were thrilled with the activist Supreme Court decision that put Bush into the White House in 2000.
Or the recess appointment of Charles Pickering to the Federal Appeals Court.The federal judiciary can't be that liberal because the Republican Party has held the White House 24 of the past 36 years, controlling judicial appointment. Seven of the nine Supreme Court Justices were appointed by Republicans. This judiciary is not liberal, but the laws they are charged with interpreting are liberal, as is the Constitution.
The call for a gay marriage amendment is an attempt to appeal to the conservative base, and nothing else. I doubt if the corporations – most of which offer domestic partner benefits – that support the Republicans care that much, but the cultural conservatives do. If the GOP can get Democrats on record voting against the amendment it will make great literature pieces in October, and "prove" that Democrats are on the side of the "activist" judges and not the good working class people of America.
The same tactic was used in 2002 with the authorization for Bush to go to war in Iraq. It worked then, and they are hoping it will work again today.
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From a Ruling in the 1967 Loving vs Virginia Case:
Loving v. Virginia
The Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.
There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "distinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny," Korematsu v. United States (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense."
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
II.
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
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From Borowitzreport.com via Calpundit:
"70% OF EXISTING MARRIAGES MAY ALREADY BE GAY
New Study Jolts White House
The Bush White House’s plan to push for a constitutional amendment banning gay marriages suffered a surprising setback today as a new study revealed that well over seventy percent of existing marriages may already be gay.
The study, conducted by Dr. Charles Cranborn of the University of Minnesota, confirmed what many social scientists have long suspected: that within the first five years of marriages, most men become, for all intents and purposes, gay.
“Soon after marrying, most men stop hitting on women and start shopping for furniture,” Dr. Cranborn said. “Scientifically speaking, how gay is that?”
Within ten years of marriage, Dr. Cranborn added, a significant number of married men stop having sex with women altogether.
“There’s only one way to describe someone who does not have sex with women, does not hit on women, and spends his free time shopping for furniture,” Dr. Cranborn added. “That word, to be scientific about it, is gay.”
FROM borowitzreport.com VIA TBOGG
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From Sen. Orrin Hatch's Website:
"We must amend the Constitution to defend traditional marriage from being undermined by activist judges. The bedrock of American society is the family, and it is traditional marriage that undergirds the American family. But recent court decisions have proven that courts are usurping the role of legislatures by imposing their own definitions of marriage on the people.
I whole-heartedly support the passage of the Allard Amendment to allow the American people — rather than a few activist judges — to define this fundamental unit of our society.
In addition, it is my belief that adhering strictly to the Constitution and the system of government our Founders outlined is the best guarantee of the freedoms we cherish as Americans. We need legislators, judges, and citizens who understand the view of the Constitution envisioned by our Founding Fathers.
I believe strongly in the freedoms enshrined in our Bill of Rights, and that it is the duty of every American to uphold those freedoms. But I also believe that these rights are sometimes misinterpreted by over-reaching judges. We should not take freedom of speech so far as to mean that pornographers may target our children. And we should not turn freedom of religion on its head, reasoning that all references to God must be removed from public life.
Our Constitution is an inspired document that has preserved the unity of our nation, protected the rights of its citizens, and made America a beacon of freedom and prosperity for the world. I consider my pledge to defend the Constitution, and all that it stands for, to be among my most sacred duties.
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And finally, the wrap up from a Feb 25th Washington Post article by Professor Peter Edelman of the Georgetown University Law Center:
""Judicial Activism": What Does It Even Mean Anymore?
Time to Bench 'Judicial Activism'
President Bush, in calling for a constitutional amendment to ban gay marriage, has once again condemned activist judges in Massachusetts for ruling that the state's constitution requires recognition of same-sex marriages. "Judicial activism" is a ubiquitous epithet, especially at election time, but it's time for both liberals and conservatives to enter into a disarmament agreement and give it up. It has become a cliche -- a scare phrase for either side to hurl at the other in place of a substantive argument that a particular judicial decision is wrong on its merits.
From the 1950s until recently, such charges were mainly a staple of conservative rhetoric. Recall "Impeach Earl Warren" billboards and President Richard Nixon's promise to appoint "strict constructionists." But attacks on judicial overreaching are hardly the monopoly of one party. Franklin D. Roosevelt complained: "The Court has been acting not as a judicial body, but as a policy-making body. We must take action to save the Constitution from the Court."
A succession of Warren Court landmark decisions made the judicial activism charge seem the property of one political camp. Signers of the Southern Manifesto condemned Brown v. Board of Education as "a clear abuse of judicial power." Conservatives all over the country decried Miranda and other expansions of the rights of criminal suspects.
Beginning with President Nixon, the rhetoric and the reality diverged. The mantra of "judicial activism" stayed consistent enough from the conservative side. What confused things was the substance. Presidents who campaigned against activist judges appointed 10 justices to the Supreme Court between 1969 and 1992, but it was "their" court that protected abortion and commercial speech, legitimated busing and affirmative action, restricted sex discrimination and aid to parochial schools, and even imposed a moratorium on capital punishment. Liberals, winning more than they expected to, kept quiet about judicial activism.
Over the past 15 years or so, the court has gotten more conservative. Liberals have found ammunition to turn the conservative mantra on its head, and the charges of judicial activism now flow in both directions. It is the liberals who point out that the current Supreme Court has struck down nearly 30 federal laws in the past decade, compared with fewer than 130 during the two centuries after the Constitution was ratified. It is liberals who now ask why the court does not defer to the political majority as expressed through legislative enactments. It is the liberals who now cry "activism" when the court strikes down laws establishing gun-free school zones, set-asides for minority contractors, state damages for discrimination based on age or disability, civil remedies for violence against women, and citizen suits under the Endangered Species Act. To many on the left, judicial activism will forever be defined by the court's decision in Bush v. Gore.
Which brings us back to Massachusetts and President Bush.
Is it judicial activism for that state's highest court to decide that the state constitution protects the rights of gay men and lesbians, or is it simply a decision with which President Bush disagrees? Bush did not use the rhetoric of judicial activism when the mainly conservative Rehnquist Court said last summer that state laws jailing gays for consensual sodomy are unconstitutional, even though he perhaps disagreed with the merits of the decision.
The Massachusetts court is sparking a national debate, just as occurred after Brown, but that debate, properly couched, is not about judicial activism. The issue is whether it is time to broaden the American dream once again by opening up the same basic opportunities to gay men and lesbians that had to be won -- sometimes in the courts -- by women, religious dissidents, racial minorities, disabled people and others without political clout.
Of course, in an election year, between flipping pancakes and kissing babies, politicians of all parties will find time to attack "activist" judges -- meaning different things by the term. The work of courts certainly deserves substantive criticism. But it would improve public debate over the right way to read our Constitution if the politicians agreed to remove the charge of judicial activism from their campaign arsenals. It's a tempting missile to lob at one's opponent, but it confuses far more than it clarifies. All sides would do well to remember Judge Alfred Goodwin's trenchant remark. "If the court makes a decision someone likes," he said, "it's applauded as 'judicial statesmanship.' If not, it's called 'judicial activism.' "