American Morning

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May 29th, 2009
06:15 AM ET

Activist judges

From Carol Costello and Ronni Berke

Politicians talk a lot about "judicial activism," but what does it really mean? The answer could be: whatever you want it to mean. The "activist judge" term is used so often and is so politically loaded some suggest you turn off the TV as soon as you hear it.

For Professor Jonathan Turley, a constitutional law expert at George Washington University, "this type of name calling is perfectly juvenile, it's simply saying that nobody could possibly disagree with my interpretation of the Constitution."

But those who use the phrase argue "activist judges" are dangerous – because they "legislate from the bench." Many Republicans have expressed concerns that a too-liberal court will pick and choose which laws it doesn't like and find a way to change their meaning or throw them out.

If that's the case, then how to explain the court under Chief Justices William Rehnquist and John Roberts. Both are conservative. And under their leadership, experts say the high court overturned about 65 state or federal laws. That's more than were overturned in the previous liberal-led court.

So is that bad? Good? Both?

"The curious thing is that yesterday's judicial activists are often today's judicial heroes," Turley adds.

In 1954, many accused "activist judges" of wrongly overturning state laws in Brown v. Board of Education – on the grounds school segregation violated the U.S. Constitution. Today, those judges aren't considered "evil activist judges," but wise men.

Some say the problem with the term "judicial activist" today is that it has evolved into something that has nothing to do with actively, impartially interpreting the law.

"Conservatives at the moment want to make sure that their views prevail on abortion, affirmative action, and religion in the public square question," says National Public Radio's Nina Totenberg.

"So when they talk about a judicial activist what they mean is somebody who agrees with them. When liberals talk about a judicial activist, what they mean is somebody who agrees with them. I don't think that in reality this term has any meaning other than rhetoric," Totenberg says.

In other words, those who say they don't want "activist judges" really do, if they support their beliefs. And, Turley says the term has become so politically charged, it affects who a president nominates.

"We have a system that largely relies on chance, because politically you don't want to appoint someone who could be accused of being a judicial activist," he says. "The tendency is to appoint someone whose never said or done anything particularly interesting in their career."

Filed under: Just Sayin'
soundoff (22 Responses)
  1. JoePublicVA

    I'm from the Bx too. But she doesnt get an automatic nod from me. I was a black minority amongst Puerto Ricans. Can't say many stood up for me....I had to stand up for myself. Hence, it doesnt what ur minority color is, it doesnt rub off.

    June 4, 2009 at 8:07 am |
  2. Elliot

    My off-the-cuff thoughts are that the term "Activist Judge" means a judge who repeatedly twists the facts, statutes, or constitution into knots to justify results that they know in their hearts are not justified. At the district court/appelate court level it can be through changing the quantum of evidence required to survive a motion to dismiss or motion for summary judgment. Now, sometimes statutes/laws are vague and it is impossible to argue that one result is right. However, I contend that there are clear examples where one interpretation is correct, and whether a judge is truly activist can be discerned. The best example is the manhandling of the Commerce Clause of the constitution that began in the Wickard v. Filburn case

    In that case, a couple who was growing wheat in his own backyard, for his own consumption, was held to be engaged in business between states (interstate commerce). Recently the ruling was basically affirmed in Raich v. Gonzalez, which held that people growing California marijuana in their own California backyard, for private California consumption in the same state, were also engaged in business between states. Of course these both are patently ridiculous – but it was necessary because without this ruling, the Federal Government would not have the power today to pass a plethora of laws – including the laws that protecte endangered species, regulate the environment, create federal minimum wages, make partial birth abortion illegal etc.

    The Judges who ruled on Wickard & Raich to allow this expansion ignored the constitutional scheme that the framers explicitly set out – the powers of the federal government were to be limited. That they did it for a supposedly "good cause" makes them no different than the Lochner era judges. (basically a later-overruled case that is much ridiculed for saying that there is a right to contract that trumps minimum wage laws much the same as there is
    a right to abortion). Their progeny are judges that create rights out of whole cloth – such as a right to aborition which is nowhere in the constitution (unfortunatly, in my opinion), declarations that affirmative action does not violate the 14th amd. because somehow it is a "compelling state interest," etc.

    And by the way, even though popular opinion contends that the judges that ruled on Brown v. Board of Education are remembered as "wise men" (words of your show) – that is not how my beloved pinko-liberal constitutional law professor at a top 5 law school who was rumored to be on Obama's list of Supreme Court nominees taught us. In his/her eyes – the decision was pretty much indefensible and ridiculous, even though it served a good cause.

    May 29, 2009 at 2:52 pm |
  3. Tiger

    Call Judge Sotomayor whatever you like–activist, empathic, racist–the bottom line is that her nomination to the Supreme Court might not be a good thing for the Court itself. Her advocacy for the American Hispanic community, her inclination to favor affirmative action, and the likelihood that as a Catholic woman she'll face relentless pressure to overturn Roe v. Wade all spell trouble for public confidence in the impartiality and wisdom of the Court. It's wonderful that she's brilliant and hard working, but it's problematic that she bullies some of the attorneys who have to argue before her and that some of her written and spoken statements lack circumspection and tact. Indeed, Judge Sotomayor's liabilities might make her a lightning rod for impeachment on the High Court, that's how understandably hostile her detractors are to her being seated there.

    May 29, 2009 at 11:27 am |
  4. Doug - Dallas

    Hi Carol,

    While everyone gets so upset over the term "activist judges", they don't stop to think that the reason we put the judges in place is to clarify the laws our congress manages to pass. It isn't about legislating or establishing policy as much as it is about fixing and clarifying some of the idiotic things our "leaders" put into effect.

    Unfortunately, the President could have nominated God for the Supreme Court (no pun intended) and the Republicans would surely find something to complain about. It has nothing to do with qualifications but with who's doing the nominating. It's a curse of the world we live in, we just have to try and survive it!

    May 29, 2009 at 11:06 am |
  5. Georgia Boy

    You hit this one on the head. Great reporting. Stick to the facts and we cna figure out the rest.

    May 29, 2009 at 10:03 am |
  6. Jean in PA

    Lots of good comments today. I believe that judges at this level need to be examined as to prior experience on the bench. What kinds of cases have they dealt with? Was "new territory" covered or did she strive to uphold the constitution? What do her peers think of her professionalism and expertise? Is she fair and competent? Can she judge each case in as unbiased manner as possible?

    Sometimes your show can blindly agree with anything Obama says. A little more to the middle and independent thinking might be the order of the day.

    May 29, 2009 at 9:57 am |
  7. Kyle Gustafson

    Thank you!! Finally a news article that appeals to our reason instead of our emotion! Let us begin a conversation about the facts and cut throught the special interest spin.

    May 29, 2009 at 9:31 am |
  8. Nick in Springfield

    You hit the nail on the head on this one. Thanks

    May 29, 2009 at 9:27 am |
  9. Bob4

    IF Sonya is a GOOD activist Judge, i.e.: Anti-Stem Cell research using human fetus's, Anti-Partial Birth abortion,Anti-Properly registered and licensed gun control,Anti-Pro abortion,Anti-Women's Choice abortion except in the case of rape victim's or in the case of a women's threat of her own life,Anti-Stigmatizing and discrimination against the mentally illl,Anti-War on drugs,Anti-Taxation withour representation,Anti-Governmental harrassment by way of unjust taxation,Anti-Forcing smokers to quit by an extreem and unjust increases in taxes,Anti-Prayer banned in schools,Anti-Separation of Church and State,Anti-Ban on Creationisim taught in public schools,Anti-Ban on the use of medical marijuana,Anti-Racial discrimination that now is arising against white caucassian americans. There should be no problem. IF she is an activiste FOR any of these above mentioned problems that need to be erradicated in America, THEN WE ARE IN BIG TROUBLE!!!!

    May 29, 2009 at 9:24 am |
  10. Greg Mills

    The Supreme Court is there to interpret law. An activist judge is one who creates law. This is not their job.

    May 29, 2009 at 9:14 am |
  11. Janet

    Kudos to Carol Costello (there's a catchy alitteration) for a well thought out clear and concise piece of real journalsim – a rarity in todays corporate media world of inane shock jocks and vacant grinning Ken and Barbie telepromter readers. And, kudos to CNN for allowing her to make a simple statement of fact without an "opposing viepoint" to muddy the waters again. Congradulations CNN for doing your job – the media needs more journalists who can examine a story, reveal facts and then – stick by them.

    May 29, 2009 at 9:10 am |
  12. Tom in the Desert

    Amen! Someone has finally addressed the Wrong-wing's 'fig leaf'. And the analysis of it's proponents is absolutely correct, "No one can possibly disagree with our interpretation of the Constitution." Surprise, surprise, Wrong-wing GOP, 77% of the electorate does – plus the Framers of the Constitution. Only someone of the psychology of Scalia, Thomas, Roberts could possibly believe that Jefferson and the Revolutionary brain-trust who authored the Declaration and the Constitution meant what they have overturned in the past 8 years! Activist judges?? We already have 4 to 5 of them sitting on the Supreme Court! And at least 4 of them attend the same reactionary Catholic Church parish in DC that thinks the Middle Ages extends into the 21st Century.

    May 29, 2009 at 9:08 am |
  13. William Sommerwerck

    I can't believe the two illiterate comments preceding mine. Good grief! These people are allowed to vote? [Don't quote this if you use this posting on air.]

    If there were a rational way to decide the application of laws, we wouldn't need judges. Judgements will always be at least partly subjective; the issue is whether judges are aware of their biases and are able to reject them.

    Unfortunately, most of us think our world view is the correct view, and not a "bias". This is how John Roberts can promise, with a straight face, that he will hand down fair and unbiased decisions, then disregard the meaning "right of eminent domain" has had for at least 200 years.

    May 29, 2009 at 9:07 am |
  14. nathan mcmillan

    As always, your slobering love, for anything Barrack Obama ,is blatanly obvious!!! Regardless of which judge your president chooses, your going to support his desicion.

    May 29, 2009 at 9:05 am |
  15. Jenni

    Thank you very much for "just sayin'." Someone needed to! I am just a humble, Mississippi housewife with little schooling and no political savvy but even I know this "activist judge" crap is just that- crap. Without so called activist judges this country would not be what it is. Landmark decisions such as civil rights cases would never have happened without judicial "activism." Not only have the Republicans made it quite obvious that they simply do not want judges that disagree with them, but in doing this obvious labeling they are attempting to reduce the authority of the court. Remember, we have three equal branches of government- the Supreme Court is not there to blindly uphold the law the Congress passes. They are there to question it, and if need be deny it power. The same goes for the President. I would say that "activist judges" should be exactly what should be chosen for appointments. Yet, this rhetoric continues, and so I thank you for an excellent piece of work this morning, Ms. Costello.

    May 29, 2009 at 9:04 am |
  16. G.D. Lorentzen

    I have never understood the term 'activist' judge. I thought the job of the Court was to interpret the Constitution and review laws to make sure they meet the litmus test of constitutionality. The whole point of judicial review is to overturn local, state and national laws that do not fit into the framework of the Constitution. It shouldn't matter if one is a strict constructionist or not, any law that violates any element of the Constitution must be thrown out, if we are to remain a system of Law and guard against what Jefferson called the 'tyranny of the majority.'

    May 29, 2009 at 9:04 am |
  17. Chris Boortz

    Carol, you drooled a little when you said Obama's name, praising him for his great pick.

    May 29, 2009 at 9:01 am |
  18. michel fulano

    Dear Ms. Castello:

    Thank you for the wonderful report lending context to the much used "Activist Judge" moniker. One thing however, the pronunciation of Sotomayor is Soh-Toh-My-Your. Thank you!

    All my best!

    May 29, 2009 at 9:00 am |
  19. David in DC

    Thank you for shining a bright light on the dark republican insinuation that Democrat judges want to circumvent the people's will, while Republican judges have actually exercised the most activist agenda in our nation's history. It's time the Republican's are called on their bull-%#@!, fascist blathering. They need to be shamed into behaving like real Americans. The press seriously let down America during the Bush regime, I'm glad to see it redeeming itself. And don't take your eyes off of the Democrats either, they may not be rabid, hate-mongering Republicans, but they are still politicians and they swim in the same fetid, scummy pond.

    May 29, 2009 at 9:00 am |
  20. Paul R.

    Please learn how to say "So-to-mah-YOR." Not "Sotomeyer."

    May 29, 2009 at 8:56 am |
  21. whataboutheproblem

    Y Republican so concern about the religious issue? History told us that there are cults many places in the world, hardly there are official orgnaizations can crack down on those cults.

    The problem those cults are taking away money from us. They use illegal ways to get money but without being caught.

    So, what does Republican want to talk about religion? Christianity prevails in USA and many of them are provacative. Is this that Republican have been talking about?

    "Judicial Activits", a new term, according to the writer of this article, in many ways what she said had been proved to be correct by many in the past. When liberals talk about a judicial activist, what they mean is somebody who agrees with them

    May 29, 2009 at 8:28 am |
  22. Daniel Nelson

    Remember Judge and thow shall be Judged and even though they want to follow man made laws and allow the killing of life they too will be Judged in the manner that they Judge on the Supreme Court which should repeal Roe vs. Wade!

    May 29, 2009 at 6:30 am |