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| Gee, where have we seen this tactic used before? Who popularized it? |
Although I think a lot of people like to think Nixon started I think it was going on much earlier. No one has either uncovered it before or through disbelief, disclosed such activity. It really does not matter. It is currently being done and disclosed.
The situation reminds me of a child that covers his eyes and says, "You can't see me" and ignores the fact of being seen.
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Could you give some examples please of laws which the SC has distorted "to fit some sense of morality"? Are you thinking of Sotomayor's infamous comment that white men can't judge, or actual rulings? Are you referring to rulings which fit a politically correct social reorganization ideology? Do you have specific rulings in mind which best exemplify "fit some sense of morality"?
As social ideologies change legal interpretations often correlate. One example is the SC ruling striking down sodomy laws a few years ago. In fact, comments in the majority opinion mentioned that an attempt to correspond to alterations in social mores about homosexual behavior was among the reasons for the decision. So in this case, one person's distortion is another's progress.
Could you please clarify? |
To help clarify I will define the term, “judicial activism,” as I intend it to be used.
“judicial activism: The making of new public policies through the decisions of judges. This may take the form of a reversal or modification of a prior court decision, the nullification of a law passed by the legislature, or the overturning of some action of the executive branch. The concept of judicial activism is most associated with the Supreme Court, which from time to time has found new laws when none were there before. However, judges at any level can engage in judicial activism when their judicial positions are used to promote what they consider to be desirable social goals. The main argument against judicial activism is that it usurps the power of the legislature, which is elected by the people.”
http://www.semp.us/publications/disaster_dictionary.php?letter=J
Please note that with this definition and my application of it, judicial activism is not restricted to just the U.S. Supreme Court. Here in California we have, not only our own courts, but the Ninth Circuit Court of Appeals as well.
A good example for this type of activism is in our California Supreme Court by Chief Justice Rose Bird in 1986. Our death penalty was overturned by the court to the consternation of many. This was found to be unacceptable which led to her removal and Associate Justices Grodin and Reynoso as well.
“Rose Bird and the Death Penalty
In 1977, Democratic Governor Jerry Brown appointed Rose Bird as chief justice of California. Bird was the first woman chief justice and, in fact, the first woman ever appointed to the court. Bird had no judicial experience. She had worked as a public defender and had impressed Brown as head of California’s Department of Agriculture. Although he considered her highly qualified, she barely squeaked by her retention election in 1978, gaining just 51.7 percent of the vote.
That same year, voters overwhelmingly passed a death-penalty initiative. In subsequent years, 59 defendants sentenced under this death-penalty law appealed their cases to the Supreme Court. In each case, Bird voted to overturn the sentence. A majority of the court sided with Bird in all but three of these cases. These decisions drew heavy criticism. Many accused the court of thwarting the will of the people. In 1986, six justices of the Supreme Court, including Bird, faced a retention election. Supporters of the death penalty campaigned to remove three justices—Bird, Joseph Grodin (a former professor of labor law), and Cruz Reynoso (the first Latino on the court). All three had been appointed by Brown. Grodin and Reynoso had only voted to uphold death sentences in three cases.
No justice in California had ever lost a retention election, but this campaign caught fire. A crime victims organization enlisted people across the state to ring doorbells. The California District Attorneys Association opposed the justices. Anti-Bird literature flooded voters’ mailboxes. The campaign gained the support of many in the business community who did not like the justices because of what they considered a pro-consumer bias. Republican Governor George Deukmejian, running for re-election, constantly attacked Bird and the two other justices as “liberals” lacking “impartiality and objectivity.” His Democratic opponent, Tom Bradley, refused to take sides. Bird aired a series of commercials, but refrained from getting involved in a discussion about the death penalty. Her commercials focused on the importance of an independent judiciary. She stated: “Judges with a backbone are a California tradition worth keeping.” Although the three justices had support within the legal community, anti-Bird forces vastly outspent their supporters. All three justices lost, and the newly re-elected Governor Deukmejian appointed three justices in their place.”
http://cache.zoominfo.com/CachedPage/?archive_id=0&page_id=1019049426&page_url=%2f%2fcrf-usa.crf-usa.org%2fbria%2fbria14_2.html&page_last_updated=11%2f29%2f2008+8%3a19%3a02+AM&firstName=Joseph&lastName=Grodin
Here the citizens of the State of California voted overwhelmingly to institute the death penalty only to be thwarted by the State Supreme Court. Even after the death penalty was overturned, it was reinstated overwhelmingly. Regardless of your position on the death penalty issue one would have at least begin to see that the will of the people was not carried out.
“Trend of public opinion
Between 1956 and 1971 proportions ranging between 49% and 58% of state residents favored the death penalty for capital crimes. However, beginning in the 1970.s those in favor increased to more than seven in ten Californians. In the 1980.s support for the death penalty grew even more and peaked in 1985 and 1986, when 83% of Californians favored it.
A 1997 Field Poll found support moderating somewhat to 74%, and in 2000 it declined further to 63%, its lowest level in thirty years. However, voter sentiment for capital punishment increased again in 2002 to 72%, and support in the current survey now stands at 68%.”
http://www.field.com/fieldpollonline/subscribers/RLS2112.pdf
Now we come to Sotomayor, just one person in a large system. The following is part of a speech from Rep. Mike Crapo (R-ID) made on the house floor August 8, 2009.
“On July 27, 2008, the U.S. Supreme Court ruled in District of Columbia v. Heller that the second amendment to the Constitution protects an individual's right to keep and bear arms unconnected with service in a militia, and to use those arms for traditionally lawful purposes, such as self-defense within the home.
This ruling affirmed what common sense has told us all for a long time: that the second amendment was intended to ensure access to all law-abiding citizens for self-defense and recreation. Unfortunately, despite this ruling in Heller, Judge Sotomayor ruled in the Maloney case that the second amendment does not apply to the States.
Even the Ninth Circuit Court of Appeals, which has jurisdiction over my home State of Idaho and is often considered one of the most liberal courts in the land, has ruled the opposite way in a similar case, making it clear that second amendment rights are binding on the States.
In Nordyke v. King, the Ninth Circuit held that the right to bear arms is ``deeply rooted in this Nation's history and tradition.'' Additionally, the court found that the ``crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed [a] fundamental [right].''
Furthermore, and again even after the Supreme Court's ruling in Heller, Judge Sotomayor held that the second amendment does not protect a fundamental right.”
http://www.c-spanarchives.org/congress/?q=node/77531&id=9028019
There are other examples available but I think you get the idea. One of the books that I have read deals with legal logic. (Logic for Lawyers: A Guide to Clear Legal Thinking by Hon. Ruggero J. Aldisert) In this book the author shows how legal cases are used to support a particular outcome. This is where the technical glitches are interpreted to either modify or get a case dismissed altogether. It is this interpretation that is used to interject personal ideas into law. This is the essence of judicial activism.
As society evolves it is natural to expect things to change. And the law along with it. The problem as I see it is when the citizens vote a particular way and the courts overturn a law that was approved. In the case of California’s death penalty it has been fairly consistently voted in favor of. Even our Proposition 8 about gay marriage was accepted by the majority of Californians. What many do not realize is that gay partnerships have the same legal rights as married couples. The battle is about a word. In which case, the courts are dragged into the melee about rights that did not exist before but was decided by a vote of the citizens. So long as the legal rights are the same on both sides, tradition should be maintained. No harm, no foul.
In your example of the sodomy laws’ being struck down is a little bit different than judicial activism. There was a law that was reviewed, not generated where one did not exist before. Here, I would agree with the decision. It is one more step for getting government out of an issue that it does not belong in. The government has no business being in any one’s bedroom, one way or another. But, you say, what is the difference between a sodomy law and the death penalty? It is one of inclusion in a public arena and common sense. The death penalty has a serious conclusion whereas the sodomy law does not.
What is the difference between a civil service exam and the Second Amendment? Both have public impact. One deals with the quality and ability of people to do a job and the other, a fundamental right as outlined in the Constitution. The courts are there for interpretation of law. But in the case of the civil service exam, common sense was not used. How can there be discrimination in an exam that is applied equally to everyone? Just because you don’t like the results, a claim of discrimination is made. But who is has to live with the results? The public.
The exam was given to determine who is qualified to be promoted. It contained specific questions about fire fighting. Answers to such an exam can determine if someone lives or dies. What does race have to do with such an exam? Either you know the information or you don’t. Either you know how to fight a fire or you don’t. To negate an exam because you don’t like the outcome is ridiculous. To negate an exam because you don’t like the racial make-up of the scores of those who took it is insulting. Do we really need to lower the bar in the name of diversity? Do we really need to lower the bar and receive sub-par services because someone does not know what they are doing? If my house is on fire I expect the firefighters to know what they are doing. I could care less of the color of their skin or sex for that matter. The only requirements are that they can do the job safely with minimal loss of property and no loss of life.
