Articles Posted in Judiciary

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I’ve got jury duty and I can’t wait!  Said no one ever (except maybe lawyers who almost never get to serve on a jury).  You have just received your jury summons, making an already bad day worse. Now what do you do?

  1.  Show up at court.  When you receive a juror’s summons, it is an actual summons for you to appear in court. Failure to appear in court at the correct time can place you in contempt of court. Don’t make matters worse by failing to appear.  I have seen different courts handle this in different ways, ranging from a mere scolding by the trial court judge to payment of a fine. The trial judge can even hold you in contempt and threaten you with jail (although I have never seen this happen, and state court judges are elected so I doubt it ever will happen).  A trial judge in 

    Virginia recently gave 200 people who had been summoned for jury duty but who had failed to appear a lecture on the importance of the role of the jury in our judicial systems. “Jurors perform a vital role in the American system of justice,” Circuit Judge Jerrauld Jones told him at Friday’s court hearing, noting that the Founding Fathers thought they were so important, they put jury trials in the Bill of Rights.  “Jury trials prevent tyranny,” Jones said.  Judge Jones was, apparently, in a generous mood as he forgave their $100 fine and several people exclaimed “Thank you!” and “Bless the Lord!” when Jones told them he was dismissing the cases against them.

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Judge Horace Ward. Photo by John Disney/Daily Report.

Judge Horace Ward. Photo by John Disney/Daily Report.

I have just learned that Judge Horace Ward has died. He was a true Civil Rights Legend. There will never be another Horace Ward. We owe him a debt of gratitude for all he endured and accomplished. He truly left the world a better place.  In his memory, I am reprinting below my letter to the Editors of the Daily Report and the Atlanta Daily World written on the occasion of his retirement in 2012. God bless Judge Ward.

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Do we elect our judges in Georgia?  That seems like a yes or no question, doesn’t it. But in the words of Coach Lee Corso, “Not so fast!”  Why is that hard to answer?  Because it depends.

You may have seen in the news a recently filed lawsuit challenging the Governor’s appointment of three newly created positions on the Georgia Court of Appeals.  The basis of this challenge to the gubernatorial appointments is that the Georgia Constitution requires judges to be elected. The Georgia Constitutional provision the challengers are relying on states:  “All justices of the Supreme Court and the judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years.”  While the Constitution does provide the governor with the power to appoint persons to vacancies “in certain circumstances,” those circumstances are limited in the Constitution to “death, resignation, or otherwise,” the suit said.

That language “shall be elected” seems pretty strong, doesn’t it?  “Shall” has always been interpreted in legal parlance to be mandatory. No ifs, ands or buts.  So the challengers seem to have a point, right?  The exception to the mandatory election is only “death, resignation or otherwise.”  It does not say in the case of a newly created position on the bench.   Many Georgia voters may assume we elect our judges.  But the truth is the Governor gets to appoint a vast majority of judges.  For example, if a judge retires prior to the completion of his or her term, the Governor has the right to appoint that judge’s successor.  Only if a judge completes his or her term of office until the next election will the voters of Georgia actually elect that judge’s successor. Are you wondering whether the judge in your county was elected or appointed?  That information is readily available. And consider this:  if the Governor appoints someone to fill a vacancy on the bench, then that person will run as an incumbent in the next election. As a practical matter, it is extremely difficult to beat an incumbent judge in Georgia. So the power of appointment by the Governor is pretty important.

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Lawyers Club of Atlanta
 
 From the President

I share with you my recent tribute to a wonderful man and judge, Judge Herbert Phipps, Chief Judge of the Georgia Court of Appeals.  Judge Phipps will, at the end of this month, hand over the position of Chief Judge of the Court to Judge Sara Doyle, and so it is a proper moment to acknowledge his work and lifetime of public service and take stock in the sort of person we have had at the helm of the Court.  Enjoy.

Greetings, Friends!

          I have been extremely fortunate to have served in leadership positions in many bar organizations, and if there is one common theme to that experience, it is the intangible reward of getting the opportunity to get to know and work with some of Georgia’s greatest leaders in our beloved profession. People who, but for my work alongside them in some bar association, our paths might never have crossed. Once such person is Judge Herbert Phipps, a Past President of the Lawyers Club of Atlanta (and first African American President).  When I think of Judge Phipps¸ I do not first think of his shining public service as the current Chief Judge of the Georgia Court of Appeals (the busiest appellate court in the United States, as Judge Ellington will remind us), but rather of his humanity and the example his life offers to us.

Over the years, I have enjoyed talking with Judge Phipps about his life and his place in the world. Many of these conversations happened over a drink at Lawyers Club. I would listen intently to stories told as only Judge Phipps can tell them, and then would ask him to tell one more, because they were so enthralling. It is not hyperbole to say that some of the stories Judge Phipps has told me seemed so outrageous I thought they had to have been made up.  But they were all true. Running through all the stories is the common thread of Justice:  Justice for the minority, justice for the disenfranchised, justice for the “little guy.” And Justice is one subject Judge Phipps knows much about.  Judge Phipps was raised in Baker County, Georgia, a county so segregated that for years he didn’t realize that white children went to school, too. It was a place where racism was so open that lawyers would use a racial epithet to describe their own clients in court.  While in college, Judge Phipps was active with the Student Nonviolent Coordinating Committee and the Southern Christian Leadership Conference during the civil rights movement.  During this time he was working on voter registration in Albany, Georgia and was jailed for several days in a cell next to Dr. Martin Luther King.  Judge Phipps’ only crime was being in a phone booth at night.  He was never charged and was ultimately released.  Dr. King shared the meals, brought to him by church ladies, with Judge Phipps.   Injustice was all around him.  But he could see that if one had the power of the law behind him, he might be able to turn around some of that injustice and start spreading the sweet richness of Justice, instead. So he decided to go to law school.  As he so poignantly described in his address when he was named Chief Judge, “I decided that if I get ready, maybe my moment will come.”  And so he got ready by becoming a lawyer. The only lawyer even willing to speak to him about a job after law school was (now famous) civil rights lawyer C. B. King in Albany, Georgia.  Mr. King hired Judge Phipps and so began an historic career of service in the Georgia Bar.

          If I have not yet convinced you about what kind of human being Judge Phipps is, ponder these words from Judge Phipps’s 2013 Law Day speech:

“For generations, lawyers have been at the forefront of the fight for equal justice. Yet, there is still a gap between the theory and the practice of equality. Lawyers must continue to be in the vanguard of the struggle to close that gap. While we are grateful for the gains that have been made, and for those who helped to make them, the question before us on Law Day 2013 is: What are you and I doing to finish the work that remains to be done? As lawyers and judges, we have the special training to do more public good than does a member of any other profession. This profession entrusts us with awesome power, from which flows great responsibilities. Often we will find that justice in the most fundamental sense is being denied persons in our presence, in our community, and in our state. Yet many who have the power and influence to do the right thing, and to encourage others to do likewise, will look the other way, or not even care. A good lawyer is sensitive to the injustices of society, and accepts a reasonable share of responsibility for correcting them. Obviously, one lawyer cannot right every wrong. But do not underestimate what one committed person can do to make the Dream a reality – Equality for All.”

That’s the kind of person who has led Lawyers Club of Atlanta and who may be the person you sit next to at the bar while enjoying a libation expertly prepared by Kenny Smith.  Who else might you meet there?  Maybe the lawyer who, after having been refused admission into the University of Georgia law school, later represented the person who integrated the college? Maybe the first Jewish lawyer to serve as President of the Lawyers Club?  Maybe the first woman lawyer to win a state-wide race for a seat on the Georgia Court of Appeals?  Maybe the lawyer who, as a young student at Emory University, marched against white racists and hatred in Forsyth County in the ’80’s?  Maybe the lawyer who founded the Diversity Program of the State Bar of Georgia?  Maybe the lawyer (now Judge) who defeated a sitting judge who would make litigants kneel in court and pray to Jesus Christ prior to trial, regardless of the litigants’ faith?  Maybe the lawyer who shared a jail cell with Dr. Martin Luther King, Jr.?  Whoever you find yourself with, as my good friend and LCA member Judge John Ellington would do, ask them “What’s your story?”

A Rising Tide Lifts All Boats,

Robin Frazer Clark
President, Lawyers Club of Atlanta

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.

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Lawyers Club of Atlanta
Newsletter – May 2015
 
From the President

The Bridge Builder

An old man going a lone highway

Came in the evening, cold and gray,

To a chasm vast, both deep and wide.

The old man crossed in the twilight dim;

The swollen stream was as naught to him;

But he stopped when safe on the farther side

And built a bridge to span the tide.

“Old man,” said a fellow pilgrim near,

“You are wasting your strength in labor here;

Your journey will end with the closing day,

You never again will pass this way.

You’ve crossed the chasm deep and wide

Why build you this bridge at eventide?”

The laborer lifted his old gray head,

“Good friend, in the path I have come,” he

said, “There followeth after me today

A youth whose feet must pass this way.

This chasm which has been naught to me

To that young man may a pitfall be.

He, too, must cross in the twilight dim.

Good friend, I am building this bridge for him.”

– Will Allen Dromgoole

 

Greetings, Friends!

When Past President Edward Krugman handed me the Lawyers Club of Atlanta gavel last May, I told you then I had some pretty big shoes to fill. And that is where I find my thoughts now as I pen my last President’s Message as your President…contemplating the shoes of others I have stood in during the last 27 years of practicing law.

I am here standing in the shoes of so many other lawyers who led and cleared the path for me and for you. As we gather in May to honor our 50-year members, which has always been one of my favorite meetings, it is appropriate that we consider those who blazed the trail before us, branch by branch, so that our path might be just a bit smoother. Here are just a few examples of Georgia Trailblazers, in whose shoes I have stood the last 27 years:

Chief Justice Carol Hunstein-1st woman Chief Justice of the Georgia Supreme Court. Justice Hunstein contracted polio when she was two, survived her first bout of bone cancer at age four, lost her mother at age 11, married at 17, became a mother at 19, and a single mother by age 22. That same year, Justice Hunstein lost a leg to cancer and was told by doctors she had only a year to live. But that didn’t stop her from getting her law degree. She opened a private law practice in Decatur in 1977 and, spurred on by a trial judge who repeatedly called her “little lady” in open court, Justice Hunstein decided to run for the bench. She defeated four men and in 1984 became the first woman elected to the DeKalb County Superior Court. She has served on the Georgia Supreme Court since 1992.

Judge Anne Workman: When she graduated from Emory Law School less than ten percent of the class of 1972 – one hundred in number – were women, as were less than four percent of all lawyers in the nation. The downtown law firms came to the Emory campus for employment interviews with the male students, but would not interview the women students at all. Judge Workman’s first attempt to get a legal job after law school was fruitless, but she recounted it very humorously. She had always loved criminal law and wanted to be a prosecutor when she graduated from Emory. She approached the district attorney at the time about employment in his office. Judge Workman recalled:   “He told me in a very matter of fact manner that there were some places a woman did not belong and that a courtroom was one of them. But that was alright because I could have a baby and he couldn’t. It was not the reasoning I had hoped to hear; but in one way it was helpful as it provided a considerable amount of focus and direction to me to prove him wrong. You take motivation where you find it. It took twelve years, but in 1985 when I was sworn in as a state court judge, I saw him and reminded him of our long-ago conversation. I remarked that I must belong in a courtroom now because it had my name on it.”

Sr. Judge Horace Ward– In 1979, Judge Horace Ward became the first African American federal judge in Georgia, having been nominated by President Jimmy Carter. He had previously served in the Georgia State Senate and as a State Court and Superior Court judge in Fulton County.   Since 1993, Judge Ward served the Northern District of Georgia in senior status. He is also well known in Georgia history from his efforts to gain admission to the then-segregated University of Georgia Law School in the 1950s. For years, the Board of Regents denied Judge Ward admission to the law school, stating that the fact that no black had ever been admitted to the university was merely coincidental. Meanwhile, the Board of Regents decided to “modify” the admissions criteria by requiring that candidates take an entrance exam and that they get two additional letters of recommendation-one from a UGA law school alumnus and the other from the superior court judge in the area where the applicant resided.   Judge Ward filed suit against the Board of Regents to gain admission, which, after years of delay, was eventually dismissed on the basis that Judge Ward had “refused” to reapply under the new admissions guidelines (which Ward’s attorneys had argued was yet another ploy to keep Ward out). Judge Ward decided not to appeal and attended law school at Northwestern University, from which he graduated in 1959. In what can only be described as a moment of poetic justice, Judge Ward was a member of the legal team representing Charlayne Hunter and Hamilton Holmes when they were admitted as the first African American students at UGA, thus ending 175 years of segregation at the university.

Judge Clarence Seeliger– Judge Seeliger was a trailblazer for racial justice and equality. He hired the first African American employee of DeKalb County State Courts and courageously removed the Confederate flag from his courtroom at great personal risk. Judge Seeliger made it clear that no one, not even judges, was above the law. Dr. Martin Luther King, Jr. said, “There comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must take it because conscience tells him it is right.” Seeliger’s life embodies that principle.

Each time a barrier is removed in the leadership of our courts, our Legislature, our profession, a door opens to a new generation of potential great trailblazers, which might include the next Horace Ward, the next Carol Hunstein, the next Clarence Seeliger or the next Anne Workman. Some very big shoes, indeed.

Please be sure to join us on Wednesday, May 20, as we honor our 50 year members who, also, have some pretty big shoes for us to fill. Come and celebrate 17 lives well lived and 17 legal paths blazed. Our 50-year members stand as beacons to promote the cause of justice, to respect the rule of law and to protect the rights of all citizens of the State of Georgia. In this example we should all take pride.

 

A Rising Tide Lifts All Boats,

Robin Frazer Clark,

President

2014-15

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Lawyers Club of Atlanta
Newsletter – February 2015
 
 From the President

Friends:

           I sat down at the bar at Lawyers Club the other night with my good friend and Past President Hal Daniel, the sole endeavor in mind being to enjoy a cup of cheer together following a long day at the office. After we ordered our “usuals” and eagerly awaited Kenny’s expert renditions, instead of the usual “How are you doing?, Hal asked me the following question: “What have you done today to make someone else’s life better?” Intriguing. What followed was a genuine reflection of my day and Hal’s to see if we could honestly lay claim to such a noble endeavor as making someone’s life better rather than just barely making it through a hard workday unscathed and still standing and breathing.

            The question brought to mind one of my favorite stories about one of my heroes, Justice Robert Benham. My service as President of the State Bar fortunately provided me many opportunities to spend time with Justice Benham and hear many wonderful stories about his life growing up in Bartow County. Before I share this wonderful story with you, let me give you a little background on the Honorable Robert Benham as a reminder and to set the stage.

            Justice Benham distinguished himself as the first African American to win statewide election in Georgia since Reconstruction. In 1989, Justice Benham was further distinguished as the first African American to serve on the Supreme Court of Georgia, following his appointment by Governor Harris.

            He also made history both as the first African-American to establish a law practice in his hometown of Cartersville. In what can only be described as something straight out of a movie, when Justice Benham would walk down the street in Cartersville to go to the Bartow County Courthouse, many fellow African Americans would come out of their homes and out of their places of work to follow him down the street. The shouts of “Attorney Benham’s going to court,” “Mr. Benham’s going to court” could be heard as they followed their hero, then “Attorney Benham”, to the courthouse, because they knew Attorney Benham was going there to stand up for the little guy, the underdog, which they, undoubtedly, felt they also were. Attorney Benham became for many African Americans the embodiment of justice, and although he was walking to court to represent one specific accused person, dozens of other citizens felt he was also representing them.

            Justice Benham’s first lesson of service to others probably came at the hands of his mother, who insisted that he shine shoes at the local barber shop. His mother had this view that if you ever plan to lead people that you must be willing to serve them first and there’s no more humbling experience than being down on your knees shining somebody’s shoes. As she said, “If you do that you won’t be full of yourself.”

          So Justice Benham as a little boy, with his brothers, shined shoes at Bob Cagle’s barber shop. As I have heard Justice Benham say, “the American Dream is that a black child from Cartersville who shined shoes in a barber shop can grow up and shine in the Halls of Justice.”

            Which brings me to the story that Hal’s question to me that night at Lawyers Club brought to mind. In the Kennesaw State University Department of History and Philosophy Summer Hill Oral History Project, Justice Benham described his family’s origins for insistence on service to others. “Family meals were not optional, they were required. A blessing was said at every meal and the children, my two brothers and I, were required to say a Bible verse. We could not say the same Bible verse anybody at the table said and we could not use the same Bible verse during that week, and that was required. There was no television on, and we were the only family in the neighborhood who had a television, but you did not watch TV while you were at the family meal and you engaged in discussion. Daddy would always ask, “Well, what are you going to do today?” And then we knew what was coming next, “What are you going to do today for somebody else?” That was at every breakfast.”

            “What are you going to do today for somebody else?” Quite a lesson that Justice Benham never forgot. Years later, Dr. Martin Luther King, Jr. would say that life’s most persistent question is “What are you doing for others.” Life’s most persistent question has been the hallmark of Justice Benham’s life.

            One of the hallmarks of the profession of law is a recognition that along with the privilege to practice law comes a duty to subordinate financial reward to social responsibility. We will celebrate many of our fellow lawyers who have done just that by offering themselves to public service through service on the bench at our cocktail meeting this month on Wednesday, February 18. Please come and thank our honored judiciary for their service. You won’t want to miss it.

           Hal’s question was a good one to ponder and so I ask it of you, my fellow Lawyers Club of Atlanta members: What have you done today to make someone else’s life better?’

            Let’s have a drink together soon at the club to discuss.

                                    Cheers,

                                    Robin Frazer Clark

Robin Frazer Clark 

President 2014-15  

The last two Fridays I have spent speaking at Continuing Legal Education Seminars sponsored by the Institute of Continuing Education. My topic:  Ethics and Professionalism.  In preparing for both presentations, I couldn’t help but think about a dear departed friend who was the embodiment of Ethics and Professionalism, Judge Ed Carriere.  I recall as one of the highest honors of my year serving as President of the State Bar of Georgia the day I accompanied Chief Justice Carol Hunstein to Judge Carriere’s home and with his wife, Jane, present, Chief Justice Hunstein published the resolution below. It gave me goose bumps then and it does now in the remembering of it. I wish everyone could have known Judge Carriere. Certainly, everyone who did was changed for the better. I share with you the Joint Resolution honoring Judge Carriere. Georgia Seal The Supreme Court of Georgia

Whereas: The Honorable Edward E. Carriere, Jr. has rendered more than four decades of service to the justice system and the legal profession in the State of Georgia; and

Whereas: Judge Carriere earned his law degree at Loyola University in California and was admitted to the State Bar of Georgia in 1971; and

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The concept of an “Open Court” has been back in the news lately with the efforts of numerous groups to try to convince the United States Supreme Court to broadcast live the oral arguments on the marriage equality case coming up in April. I am a proponent of that. In this day and age of online streaming and immediate tweeting there is simply no good, legitimate reason not to allow all Americans live access to what is going on in the Country’s highest Court as it is happening. But the Justices on the U.S. Supreme Court, apparently, disagree. I understand that one objection to live broadcasting of arguments from Justice Kagen and Justice Sotomayor is they are afraid broadcasting arguments live might induce counsel before them to engage in theatrics and shenanigans. Folks, that is ridiculous. Utterly ridiculous.  The Georgia Supreme Court has been broadcasting oral arguments before it for years without even a hint of theatrics from the counsel who appear before them. Members of the State Bar of Georgia are required to use the utmost deference before any judge, but particularly the Supreme Court. All members of the Bar know the proper etiquette to employ before the Court. The Court doesn’t have to worry about anything unseemly happening.  And should there be any doubt about this whatsoever the Court is constantly manned by Georgia State Patrol Troopers. No one is going to do anything they shouldn’t do. This would be the same for the United States Supreme Court.  The Georgia Court of Appeals, unfortunately, does not, at the moment, permit cameras in their courtroom.  There is no explanation why other than perhaps a budgetary one. It is my understanding that when a new Judicial Building is built, in the footprint of the current Georgia Archives building, the Georgia Court of Appeals will then be equipped to allow live broadcast of oral arguments.  I hope that is sooner rather than later.

The United States Supreme Court may be feeling the heat. It typically makes audio recordings of oral hearings before it available at the end of the week. In the marriage equality case, the Court announced it would make the audio recording available the day after the hearing. In its most recent announcement on the subject, the Court has even moved that up and has indicated it will now make the audio recording of the argument available to the public that afternoon, the same day as the oral argument.  If this is true, ask yourself:  what is the difference between that and simply allowing all Americans to hear the argument in real time, in the privacy of their homes or at their work desks?  I can imagine “oral argument parties” where citizens host viewing parties complete with coffee and Krispy Kreme doughnuts (make mine a Java Chip, please), or maybe Mimosas and Bloody Marys, so that they may enjoy the arguments in the company of their friends who are of like mind.  After all, most things have richer meaning when they are shared experiences.

The push for transparency of the United States Supreme Court is nothing new…it has been going on for years.  Here is why it is so important.  Our nation was founded on the concept of self-government, that “We The People” decide how our government will behave and “We The People” will decide how to govern ourselves according to the Rule of the Law and the sacred Constitution, which men fought and died for so we could be a Free Nation. The United States Supreme Court is the final arbiter of the Law. It is the only body in our Nation that decides with finality whether something does not violate the U. S. Constitution.  Do men and women not respect something and hold onto its principles more when they have been involved in its making?  When they can see for themselves the fairness and equality used in its creation?  Lack of information breeds suspicion.  Secrecy creates mistrust.  With suspicion and mistrust comes their ugly cousin, contempt. Why would the United States Supreme Court wish to risk such a side effect of their rulings?  Why wouldn’t the Supreme Court want their opinions to be embraced by “We The People,” such that their opinions would have the stamp of  authority with the public they rightfully should? It could easily be accomplished simply by livestreaming their oral arguments.

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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.