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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.


I read with horror the article in today’s Fulton County Daily Report, our legal news organ, about a lawyer who received a summons for jury duty in DeKalb County and who then promptly and arrogantly emailed the judge informing the judge, Hon. Dax Lopex, DeKalb County State Court, that if selected for the jury she would blame the plaintiff and automatically find for the defendant. I find this offensive on so many levels it is hard to know where to start. As the 50th President of the State Bar of Georgia, as the Past President of Georgia Trial Lawyers Association, as an Officer of the Court who swore to uphold the Constitutions of the United States and the State of Georgia, and mainly, just as a plain old Georgia citizen, I find this behavior by this Georgia lawyer to be outrageous.

The jury system is the Hallmark of the American Justice System, both criminal and civil. As a plaintiff’s personal injury trial lawyer handling only civil money damages cases for injured people, the ability of my client to seek redress and justice for injury depends on Georgia citizens performing their civic duty in the form of jury duty. Everyone knows it is difficult to reorganize one’s week to attend jury duty and knows it is never convenient for someone to have to serve on a jury. But if you have read many of my blogs, you will already know that once someone has served on a jury (or even gone through the jury selection process) they become even more proud of the American Justice System and are proud for having performed their all-important role in it. For the vast majority of people, serving on a jury turns out to be one of the most meaningful things they have ever done for their community and their State. Very few citizens leave jury duty disgruntled at the process.

Thomas Jefferson said about juries: “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Anyone who loves our great country would have to agree with that. Even though the jury system is not perfect, it is, without question, the best legal system in the world. Many countries have copied our judicial system. This conduct by anyone of denigrating our jury system would be reprehensible, but it is even more so for a lawyer, an officer of the court who has sworn to uphold the constitution, to do so. It is, frankly, unfathomable. Judge Lopez (rightfully) sentenced her to a night in jail for contempt of court. You would think a night in the DeKalb County jail would get someone’s attention, wouldn’t you? I guess we shall see, because Judge Lopez also referred the matter to the State Bar of Georgia’s Office of General Counsel for potential disciplinary proceedings against her.


May 1st is traditionally known as “Law Day” in America, a day in which the rule of law is celebrated. It was officially designated “Law Day” by Congress in 1961. Law Day underscores how law and the legal profession contribute to the freedoms that all Americans share. Georgia lawyers have already been holding events around the State to celebrate Law Day 2013. The State Bar of Georgia recently hosted hundreds of school children at the State Bar Center to celebrate Law Day in a program called “Realizing the Dream: Equality for All!” Below are my remarks for this wonderful celebration.

Remarks of Robin Frazer Clark

Realizing the Dream: Equality for All!


As a plaintiff’s personal injury trial lawyer in Atlanta who frequents the Fulton County Courthouse, the story below scares me. Bullets were shot through one window of the 8th floor of the Fulton County Courthouse. This is the floor that houses the Fulton County Sheriff’s Department and has the walkover to the old Fulton County Superior Court, the same walkover that Brian Nichols used for his escape five years ago. Scary stuff!

Window apparently shot out at Fulton courthouse

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I have written often in the past about Judge Anthony Alaimo, a United States District Judge for the Southern District of Georgia, who the Georgia Trial Lawyers Association honored with its first Anthony Alaimo Guardian of Justice Award last year. Judge Alaimo passed at the end of 2009. Put simply, there will never be another person like him. Below is a column that appeared in the Augusta Chronicle about this Great American.

The Alaimo way

Groundbreaking federal judge set a gold standard for the bench

A week ago tonight one of my dear friends passed from this earth. Thomas E. Magill was my close friend and I am saddened at his death. Tom was a defense attorney, and so we were often adversaries with Tom defending many of the cases I filed on behalf of my clients. We even had tried a wrongful death case against each other. It is through that framework of being opponents that we became the closest of friends. The fact that we became such good friends even though we were typically on the opposite sides of cases is a testament to the professionalism in the law, that two opposing counsel do not have to take anything said or done in the heat of the battle personally, but can do their jobs on behalf of their respective clients, seek justice on behalf of their clients and still come out of that battle with the deepest respect for one another. That is one thing that makes the legal profession so noble and unlike any other profession on Earth. It is also a testament to my friend, Tom Magill. The world was a better place with Tom in it. I will miss him dearly.

MAGILL, Thomas E. THOMAS E. MAGILL Tom Magill died with grace and serenity on Monday, October 5, 2009. He was a loving and beloved husband and father, a respected attorney, a faithful servant of God, and a loyal and trustworthy friend to many. He will be remembered with joy and will be sorely missed by the many whose lives he touched so deeply. Tom was born in Washington, D.C., on July 13, 1953, and moved to Birmingham, Michigan in early childhood. He graduated from University of Detroit High, Kalamazoo College, and Tulane University School of Law, and he maintained lifelong friendships with classmates from each school. He moved to Atlanta in 1978. He then joined the firm of Carter, Ansley, Smith and McLendon and in 1996 formed his current firm, Magill and Atkinson. He was also an experienced mediator with Henning and Associates. Tom was an avid golfer and cherished his time on the course at Druid Hills Golf Club. Tom was an active and faithful servant of the Lord at the Cathedral of Christ the King, and he loved his many dear friends there. Tom is survived by his beloved wife of nearly 26 years, Dr. Carol Brock, and the three children he delighted in, Jenny, Connor, and Chris. He is also survived by his sister Ann (Richard) Nahigian of Fresno, California; brothers Douglas (Karen) Magill of Solon, Ohio, Robert F. (Carol) Magill, Jr., of Dexter, Michigan; nieces Emily (Dane) Wildey, Ann-Marie (Danny) Kraft, Katie Magill, Krista Magill, Kirstie Brock, and Jodie Cunnington; nephews, Douglas A. Magill, Jr., Brian Magill, Marc Magill, Michael Magill, Sean Magill, and Brock Cline; great-nieces Claire Wildey and Martha Lee Brock Shepherd; great-nephews, Stone Wildey, Colson Kraft and Oscar Duke Shepherd; and many cousins. Tom was preceded in death by his parents, Robert F. and Aileen (O’Connor) Magill. Tom and his family are forever grateful for the love and support shown by their family, friends and fellow survivors over the past three years, since the beginning of his journey as a multiple cancer survivor. Family will be receiving friends Thursday, October 8 from 6 to 9PM, with the rosary at 8PM, at H.M. Patterson and Son, Spring Hill Chapel. The funeral service will be held Friday, October 9 at 10AM at Cathedral of Christ the King. A private burial will be held at Honey Creek Woodlands at the Monastery of the Holy Spirit. In lieu of flowers, donations may be made to Winship Cancer Institute at Emory University, American Cancer Society , Kidney Cancer Association, Support for People with Oral and Head and Neck Cancer, the Cathedral of Christ the King, or to the charity of your choice.

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