Judicial Criticism

This Roll Call article talks about David Barton, a historian who is arguing that Congress should take to impeaching "activist" judges in order to bring the judiciary back in line with the will of the people.

As a law student, amatuer historian, and a student of politics, I have to say that Barton and all those who think impeachment should be a tool for bringing judges back to the will of the people--hogwash!!!

The Judiciary is the one branch of government that absolutely, positively should not be subject to the will of the people. The judiciary is the one passive branch in our government. Judges can't go looking for cases, cases must come to the courts. People say "I will go to court" they don't say, "Wait till the court comes." This is not to say that Congress does not have a legitimate oversight role to ensure that the Judiciary does not act beyond its fiat, but in my experience, the courts are by nature an institution reluctant to take on a more expansive role. In fact, I would be willing to wager that most judges would be far happier with a lighter workload.

The concept of the "activist judge" interpreting laws contrary to the will of the legislature reflects not so much an expansive mindset of the courts wanting to act as an unelected legislature as much as a bellweather of ineffective legislation. A judge is, by their very nature, a very reactive person. Despite their personal beliefs, a judge must decide the case before them--thus they are reacting to the stimulus of a case and must produce a legally reasoned, fair result.

The courts do not get to write the law, but when the legislature fails in its duty to write laws that provide true guidance for enforcement or interpretation, the legislature cannot then criticize the courts for their attempts to read between the lines. In the legisaltive gauntlet, certain compromises are made, legislators and judges know this. But compromises are not the issue here, the issue is that legislators, fearing for their re-election are reluctant to take unpopular stands fearing voter backlash. The result--the legislators then decide to punt, leaving the interpretation of a vague law to the courts. The courts, then doing what they must, have to apply an interpretation to the law (since they have to have a winner in any case). The legislature then considers it politically expedient and useful to then blast "activist judges." If the legislature had done their job, the judges would then be bound by the law. But if there is wiggle room, a panel of reasonable judges could come to differing conclusions about the meaning of hte law--and they would all be right because the legislature lacks the spine, fortitude and forethought to consider the implications of a vaguely written law.

Thus, if Congress or a state legislature wants to point fingers for the cause of "activist judges" they best go stand before a mirror, take a long hard look and then point to the mirror. More respondible legislation is needed--not an ad hominem attack on judges.

Judicial Critic to Lead Frist Tour