What is an Activist Judge? Should I Care?

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What exactly is an “activist judge” and why should I care?  I often get this question at cocktail parties. In legal circles, the answer to the question “What is an activist judge” is usually answered “Any judge who rules against you.”  But the term is being heard frequently in the news these days, perhaps because of several rulings coming from the United States Supreme Court and perhaps because of the piecemeal change in marriage equality being played out in various’ states’ Probate Courts on a seemingly daily basis.

An “activist judge” is actually a judge who is seen as attempting to legislate from the bench, a judge who, through her or his judicial rulings, is reading into the law something that is not actually there, or who is trying to create law as she or he thinks it should be even if the statute at issue doesn’t actually say or permit such a ruling. It is a  judge or justice who makes rulings based on personal political views or considerations rather than on the law, or who issues rulings intended to have political effects.  The label of “activist judge” has become pejorative, usually said with a roll of the eye, or a slight snicker of disdain, as if such a judge has no credibility or they are inherently bad.  No judge, ostensibly, wants to be labeled an “activist judge.”  For example, in Wisconsin the election for the State Supreme Court is around the corner and a challenger to an incumbent justice claims the incumbent is “activist” and, therefore, should be summarily disposed of.  The name-calling also usually only applies to judges in appellate courts, who either correct error in the trial courts below or interpret the current law, whether statutory or common (case made) law, to determine how a case should turn out given its unique set of facts.  Whether you deem a judge to be an “activist” sometimes appears to be no more than a political question and sometimes seems to come down to your political beliefs. If the judge ruled in opposition to your political beliefs, you may tend to label that judge “activist.”  For example, the Conservative ThinkTank The Heritage Foundation, whose self-proclaimed mission “is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense,” has an entire page on its website devoted to calling out what it contends are rulings by activist judges or activist courts.  Last month, prompted largely by recent court rulings on gay marriage, an Idaho House committee voted Monday to introduce a resolution calling for the impeachment of federal judges who don’t follow the original intent of the U.S. Constitution.

“Judicial Restraint” is often considered the opposite of “Judicial Activism.”  “Judicial Restraint” is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional, though what counts as obviously unconstitutional is itself a matter of some debate.  In deciding questions of constitutional law, judicially restrained jurists go to great lengths to defer to the legislature. Judicially restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges.

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Determining whether a judge is that dreaded “activist judge” has become even more of a pastime lately given the state of affairs in Alabama on the issue of marriage equality. Depending on the day, same sex couples may, or may not, be able to obtain a marriage license in Alabama.  Whether a county Probate Clerk in Alabama will issue a same sex marriage license in Alabama seems to change on a daily basis. This uncertainty stems from a decision issued by Judge Callie V.S. “Ginny” Granade , a United States Ditrict Court (meaning Federal life-time appointed trial judge) finding the Alabama ban on same sex marriage to be unconstitutional.  Before being confirmed for the U. S Bench by Congress, Judge Granade was a federal prosecutor, extremely conservative by all accounts, as most  Assistant U.S. Attorneys are.  Her former boss, U.S. Attorney J. Don Foster, said this about her: “I always thought of her as being conservative. I don’t know of anything that would paint her as anything but a conservative except maybe this decision,” he said, referring to the marriage ruling. “I don’t know her personal beliefs on that subject, but I know she was doing what she thought was right under the law.” Now that she has declared the Alabama ban on same sex marriage to be unconstitutional, many Conservatives who before sang her praises, now derisively call Judge Granade an “activist judge.”  Other court watchers might call the Alabama Supreme Court Chief Justice the activist judge on this issue, as Chief Justice Moore has been urging officials, including state court judges, to flout Judge Granade’s federal court order holding unconstitutional a provision of the Alabama constitution that bans the recognition of same-sex marriages. Moore has denounced the ruling of U.S. District Judge Callie V.S. “Ginny” Granade as an example of “judicial tyranny” and promises that he “will continue to recognize the Alabama Constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment.”

Who in Alabama is exercising “judicial activism” and who is exercising “judicial restraint?”  I doubt there will ever be agreement on the answer to that question. But what we do know is this:  the Final Word goes to the United States Supreme Court, which will hear oral argument on the same sex marriage issue next month. And what the United States Supreme Court says about the constitutionality of a law is the Supreme Law of the Land.    It doesn’t really matter whether we agree or disagree with the U.S. Supreme Court’s ruling, it will be the final say on the subject. Stay tuned.

 

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years.  Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.  Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.