On judicial activism
November 24, 2008 · Updated 6:47 PM
``Judicial activism'' and ``judicial restraint'' have very little to do with the law and a great deal to do with ideology and politics, but rarely does anyone say so.
There are plenty of occasions where one anticipates that a judicial appointee will show restraint, and one gets an activist.
In any case, both terms are laden with social and political meaning -- not legal meaning.
Both are used in alleging that Judge X betrayed the court in his/her obligation to follow the law.
Neither term is clearly defined in the law, but ``judicial activism'' is clearly a term to describe a decision that one does not like, and thus one that violates one's notion of Constitutional propriety and/or popular opinion.
``Judicial activism'' is usually associated with liberal causes. It came into use during in the 1960s when Earl Warren was Chief Justice of the U.S. Supreme Court. It is also inextricably associated with Roe v. Wade, which is still regarded by many as a radical departure from proper legal decision-making.
Legal Realism and Legal Formalism are names given to two schools of legal thought in U.S. history. The formalists assert cases should be decided strictly on rules and/or principles -- without regard for morality or public policy.
That gave birth to Realism, which held that such an approach is unrealistic since legal decisions are inherently based on what may be determined to be contradictions, faulty premises and precedents. While lawyers and judges might cite prior cases to legitimize a decision, those prior cases and rules were not to be final arbiters.
Realists asserted that judges and lawyers are human actors acting under changing circumstances and influences, cultural and social, all of which cause a personal sense of fairness and intuition in deciding a case. All these factors are ultimately harmonized with the rules and formulate the framework of the law.
Legal Realism has its critics, who say that judges will do whatever they please. Its defenders respond saying that it encourages all actors to bring forth and openly discuss the real issue in a case, which includes a basic sense of fairness and what the result should be and why.
Legal Realism leads to ``judicial activism.'' It does so by subverting faith in prior rules and principles and allowing judges to insert their ideologies in a decision under the guise of following the law, when they are really making the law.
All this becomes very meaningful in controversial cases. The best and most recent example was the U.S. Supreme Court decision in Bush v. Gore. It is regarded as one of the most extreme cases of judicial activism, since it was decided by justices who allegedly practice judicial restraint.
Many say that this was clearly an example of consummate partisanship. The controversy attending it was tremendous. Nevertheless, the assertion that George W. Bush was elected by his father's friends on the Supreme Court has faded. The ultimate lesson is that the law is determined by majority vote.
Another lesson is that the law also reflects and biases and interests of the dominant groups in society. Preserving this dominance is the primary institutional purpose of the legal system.
A final lesson might be that attempting to distinguish between jurists based on their degree of activism or restraint is an exercise in futility. The evidence seems to confirm that allegations of judicial activism come from all parts of the political spectrum and that decisions are attacked based on a political and ideological point of view.
Cy Baumgartner is a Mercer Island resident.