Question about "activist judges"

[pgwenthold]

A lot of the complaints about gay marriage is that so-called "activist judges" are reinventing terms. The response has been to propose amending constitutions to make sure they don't do that.

But I have a question. If it is agreed that the constitution has to be changed in order to ban gay marriage, then doesn't that mean that the current constitutions must allow gay marriage? And if that is the case, then aren't the judges absolutely correct in ruling as such? And if they are correct, then why are they being blamed as "activist judges."?

It seems to me that the whole fact that we need to change the constitution in order to prohibit gay marriage is an admission that it is allowed by the current version, and these supposed "activist judges" are only doing what they should be doing.

This is not a problem of stopping activist judges. It is "I don't like the fact that homos have the same rights as me and I want to amend the constitution to make sure they don't."

 

[hammegk]

This is not a problem of stopping activist judges. It is "I don't like the fact that homos have the same rights as me and I want to amend the constitution to make sure they don't."

Congratulations. You show you understand one facit of the true battle now underway.

I suggest the next few decades in the USA -- assuming there is a future -- will be spent in a battle to rein in judiciary power; the activism is irrelevant. Legislatures can legislate, and Executive can ignore.

just my usual drive-by ....

 

[Silicon]

Once a social taboo, love across the color line is becoming increasingly common. The number of interracial marriages in the U.S. has leaped almost 1,000% since 1967, when a landmark Supreme Court decision, Loving v. Virginia, voided state antimiscegenation laws that forbid unions between the races. Today there are more than 2 million interracial marriages, accounting for about 5% of all U.S. marriages, and almost half a million of them are between blacks and whites.

Yet even after the Loving decision, which required the state of Virginia to recognize the marriage between a white man and a black woman, Richard and Mildred Loving, the resistance to mixed nuptials in the South seemed to stay as firm as the reverence some there still have for the Confederate flag. It was only three years ago that Alabama became the last state to drop its (unenforceable) ban on mixed marriage, and it did so with just a 60%-to-40% vote by residents to make the change.

http://www.time.com/time/connections/article/0,9171,1101030512-449470,00.html



Remember, the majority of voters were against interracial marriage in 1967.


"antimiscegenation". Now there's a word I've never heard in my lifetime. A word so foul.

 

[hammegk]

IIRC, the KKK and the NRA were founded in the same year.

Are you sure you want to "register"? I think I'd go my gay and merry way as low-key as possible. That's just me, I guess.

 

[Zero]

"Judicial activism" is another phony term created by right-wing lie-mongers. What they really mean by that phrase is "judges who follow their duty in the proper way, who we(the Religious Wrong) cannot bully into supporting our evil, narrow-minded superstitious and bigoted bullsh!t"

 

[pgwenthold]

"Judicial activism" is another phony term created by right-wing lie-mongers. What they really mean by that phrase is "judges who follow their duty in the proper way, who we(the Religious Wrong) cannot bully into supporting our evil, narrow-minded superstitious and bigoted bullsh!t"

I'm more for "Judges who follow their duty and we don't like what they've done, but we really don't have a legal argument against it so we'll just have to call them names in hopes that people will ignore the fact that we don't have a legal response."

 

[Zero]

I'm more for "Judges who follow their duty and we don't like what they've done, but we really don't have a legal argument against it so we'll just have to call them names in hopes that people will ignore the fact that we don't have a legal response."

I think it is more than what you state...I think it is more about wanting to actually tear down America and rebuild it as a place where religious bigots can bully all three branches of government, instead of just being able to coerce two of them.

 

[Tmy]

Judges interpet the laws. So in Mass the marriage laws and contsitution were written in a way that allowed the Judges to interpret the laws to allow gay marriage. In other states the laws are written in a way that woudl not allow this.

The funny thing is that the latest talk in Mass is that we shoudl elect Judges in order to prevent "judical activism". Of cousre wouldnt turning judges into politicians cause more judical activism???

 

[Some Friggin Guy]

Whoever said that "judicial activism" is a concept created as a lie by the right wing, is only half-right.

The concept of judicial activism is real, however, it was created by the right-wing.

If you assume an activist is someone who participates in some kind of active, though peaceful, demostration against the government, I think a pretty strong case can be made for Roy Moore to be labelled an activist judge.

 

[Brown]

People seem to be opposed to activist judges. And yet, it's really hard to find anyone who can intelligently define what an "activist judge" is.

Perhaps the most common "definition" is "a judge that applies the law, and doesn't make the law." This is a naive and useless definition. All good judges make law. All good judges HAVE TO make law. Judges have to interpret and apply statutes, and that is a kind of "making law." Even when there are no statutes, judges have made law. In many states, the laws that hold a negligent person responsible for the consequences of his negligence, for example, are judge-made laws. You won't find those laws in the statutes passed by the legislature; you'll find them in the casebooks that report the decisions of the appellate courts. There are many other areas of law and settled legal doctrines that have been crafted by the judicial branch, one case at a time.

Also, there is some confusion about which branch of the government "makes law." In general, the feeling is that the legislative branch is the only branch that should "make law." But in fact, all three branches make law. The branch that makes the most law is the executive branch, no question about it.

Another useless definition of an "activist judge" is "one that does not abide by the will of the elected legislature." It has been part of American jurisprudence since the case of Marbury vs. Madison that the courts can declare legislative acts unconstitutional. Since then, the power to declare legislative acts unconstitutional has been generally considered to be valuable to the checks and balances of government. Besides, it is not uncommon for a legislature to pass a statute that is constitutionally questionable but popular with the citizens, with the legislature having a pretty good idea that the courts will not let the law stand. In other words, the legislature often relies upon the court to protect itself from foolish actions that are favored by the majority.

Most charges of "judicial activism" lately have been bogus. The ones making the charges do not seem to know what "judicial activism" means. Perhaps they think it means that a judge made a decision that they don't like.

 

[Cleon]

This is very simple.

An "activist judge" is a judge that, through the information presented to him/her, comes to a decision that may not be popular.

I.e., finding that the Massachusetts law banning gay marriage violates the state Constitution provokes cries of "activist judges." (Never mind that most of the people whining about "activist judges" couldn't tell you what the Mass. constitution said or whether the law was constitutional or not).

 

[Ladyhawk]

But I have a question. If it is agreed that the constitution has to be changed in order to ban gay marriage, then doesn't that mean that the current constitutions must allow gay marriage? And if that is the case, then aren't the judges absolutely correct in ruling as such? And if they are correct, then why are they being blamed as "activist judges."?

Hi, PG....

No, it doesn't mean that the current consitutions must allow gay marriages. It means that there is some vagueness or some question as to what is allowed, hence we need to apply an amendment to the constitution so that no such gap exists in the future. Gay marriage is a very emotional debate and is receiving a lot of attention right now, putting the spotlight on any decision being rendered by any judge. (For the record, I am in favor of gay marriage).

Otherwise, you're asking judges to predict the future and rule on the basis of that prediction on current cases, regardless the issue. That can be a dangerous thing....

 

[pgwenthold]

Re: Re: Question about "activist judges"

No, it doesn't mean that the current consitutions must allow gay marriages. It means that there is some vagueness or some question as to what is allowed, hence we need to apply an amendment to the constitution so that no such gap exists in the future.

OK, I back off the original comment to say that the constitution allows it, but it is still the case that the constitution is not clear on the issue.

Thus, why blame the judge when the constitution needs to be fixed?

Either the constitution is clear that gay marriage is wrong, in which case the judges would be making mistakes, or the constitution is not clear and there is room for alternate interpretations. If it's the former, then there is no reason to mess with the constitution. If it is the latter, then the "activist judges" are not the problem.

 

[Samus]

An "activist judge" is one that rules by personal opinion rather than by what the law (to include the constitution) says. It's the buzzword de jour.

U.S. code (1 USC 7) does indeed define marriage as being between one man and one woman. So, a state judge ruling that marriage can be defined as something else is trumping federal law, which is a no-no. Unless...the U.S. code trumps the constitution, which is the document from which all laws are derived and must be compliant under.

So, the question becomes: Is proscribing legal marriage status for homosexuals a violation of the constitution?

If the answer is yes, then the lower court judges were just in their rulings, and the U.S. code should (eventually) be modified, which would probably only happen after a successful appeal to the Supreme Court, if it was modified at all. Regardless of any congressional action, that section of U.S. code would be nullified by a ruling of the Court.

If the answer is no, then the lower court judges were indeed being activists, and allowing their personal stance on the subject to override their duty to uphold federal law.

 

[corplinx]

An activist judge is one that rules in favor of something you dislike.

 

[Upchurch]

U.S. code (1 USC 7) does indeed define marriage as being between one man and one woman.

The question is, which takes presidence, the code or, say, the 1st and/or 14th Amendments (depending on how you look at it)?

Interestingly, according to the above link, that code has only been in effect since 1947. Not that it was as socially acceptable as it is now, but does that mean it was fully legal for gays to get married prior to 1947?

 

[Brown]

U.S. code (1 USC 7) does indeed define marriage as being between one man and one woman. So, a state judge ruling that marriage can be defined as something else is trumping federal law, which is a no-no.

Except that this definition is limited to federal law: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States...." This definition provides a rule of interpretation of federal laws, but does not purport to supercede state laws.

As a side note, some people really get thrown for a loop by the definitional provisions of section 1, even though there are very good reasons for them:

In determining the meaning of any Act of Congress, unless the context indicates otherwise - words importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular; words importing the masculine gender include the feminine as well....

Many states have statutes that say similar things: the singular includes the plural, the masculine includes the feminine, etc., and some people think these laws are nuts.

 

[Cleon]

An activist judge is one that rules in favor of something you dislike.

In a nutshell, that's a very apt description.

 

[Dancing David]

"Judicial activism" is another phony term created by right-wing lie-mongers. What they really mean by that phrase is "judges who follow their duty in the proper way, who we(the Religious Wrong) cannot bully into supporting our evil, narrow-minded superstitious and bigoted bullsh!t"

The funny thing about this is that there is a lot of 'judicial activism' on the right as well, where judges makes rulings in favor of conservatives and take actions that benefit the conservative issues.

When the EPA was squaleched in the name of property rights , a very good example, it was conservative 'judicial activism'.

It is seen the most in lower courts, where say a judge awards vistation to an abusive man, just because the wife has done something to piss him off.

 

[pgwenthold]

So, the question becomes: Is proscribing legal marriage status for homosexuals a violation of the constitution?

If the answer is yes, then the lower court judges were just in their rulings, and the U.S. code should (eventually) be modified, which would probably only happen after a successful appeal to the Supreme Court, if it was modified at all. Regardless of any congressional action, that section of U.S. code would be nullified by a ruling of the Court.

If the answer is no, then the lower court judges were indeed being activists, and allowing their personal stance on the subject to override their duty to uphold federal law.

I agree with everything you say. But this is the rub: in the State of the Union, for example, the president complained about activist judges perverting society, but then said we needed a constitutional amendment to outlaw gay marriage. If the judges were "activist judges" by ruling in favor of gay marriage, then that means that the current version of the constitution must not prohibit laws against it, and they were wrong to rule as they did. But if that is the case, why does the constitution need to be amended?

As you indicate, the two concepts are mutually exclusive. Either the constitution currently allows for gay marriage, in which case it needs to be amended, or the current constitution does not allow for it, and it is a problem of activist judges. It makes no sense to claim both.