Re: Activist judges

From: George Murphy <>
Date: Fri Dec 23 2005 - 12:51:31 EST

----- Original Message -----
From: "Carol or John Burgeson" <>
To: <>
Sent: Friday, December 23, 2005 12:09 PM
Subject: Activist judges

>>>Depends on what you mean by "the problem." They can't avoid deciding
> where
> the boundary between judging & legislating lies. They can avoid the
> problem
> 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.

Which seems to come pretty close to saying that judges should ignore laws
they don't like & make up new ones.

Whatever may have been the merits of the Dred Scott decision as it applied
narrowly to Scott, Taney was certainly being unnecessarily "activist" in
going beyond that & claiming that the Missouri Compromise was

Your statement about Brown misses the point. When I say that judges are to
interpret the law I mean, of course, that among other things they're to
determine whether or not specific laws are in accord with the Constitution.
(I.e., I'm not criticizing John Marshall as unduly activist.) & the
constitution requires that citizens be treated equally under the law.
(Still, I think the court would have done better to focus on the fact that
separate schools had in reality long been unequal instead of on more
theoretical arguments that they had to be.)

If the Court in a few years overturns Roe v Wade I'm sure you'll have your
criticisms, though to be consistent you'll probably avoid the use of the
word "activist."
& in fact the problems of judicial activism which liberals pooh-poohed when
the Supreme Court was often giving rulings that they liked will become a
source of liberal anguish when the shoe is on the other foot.

Received on Fri Dec 23 12:53:22 2005

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