Activist judges

From: Carol or John Burgeson <>
Date: Fri Dec 23 2005 - 12:09:30 EST

>>Depends on what you mean by "the problem." They can't avoid deciding
the boundary between judging & legislating lies. They can avoid the
of ignoring existing law & its intent.>>

Not so simple, George.

By many accounts, the Dred Scott decision was made by judges who deplored
the ruling but felt they had to follow the law.

The Brown vd School Board decision 100 years later was made by judges who
one might fairly call "activist." They found that the laws of segregation
had been lawfully passed, but were, none the less, unconstitutional.

The two Gobitas decisions of 1939 and 1944 might also be used to
illustrate this point.

It does no good, IMHO, to argue "activist judge" in any particular case,
or even to argue that I like or dislike the decisions made. It is much
more useful to focus on the reasoning of the judges (both sides) in a
specific case.

Received on Fri Dec 23 12:17:22 2005

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