Judicial Activism

I rarely like to address politics. Politics usually makes me feel dirty and angry; not how I like to feel. But, I have to say something here.

Tom Delay (Republican, Speaker of the House) made some comments about "Activist Judges" only, this time, he wasn't talking about Judges reading something INTO the Constitution, or the old "separation" clause issues... He was angry at the U.S. Supreme Court and Court of Appeals for the failure to allow Congress to enact the T.S. law. I would like to take this opportunity to thank Congress for wasting its time dealing with this completely inappropriate issue rather than all the other things they usually stick their fingers into, because a Congress not sitting around looking for things to meddle with is a happy Congress. Please, keep up the fabulous work and quit messing with everything. To me, a perfect situation, politically, is when you have a Democratic House (to generate ideas and legislation), a Republican Senate (to curb spending and unnecessary legislation and intrusion into private life) and either side for a president-- because much less will get done, and believe me, Congress needs to do less and try to think about what they are doing a lot more.

But, back to the topic at hand....

This is how our Judicial system works (at its most basic levels): There is a law that provides a framework for the People to follow. The law is passed by Congress or the State Legislature. Once the law is written, it goes into effect. If it is well written, all goes smoothly and the law has the desired effect.

Now, lets say that someone is unhappy about a decision made under this new law. If that person is not the person directly effected by the decision, that person has no standing to challenge the decision. For example, in Georgia two men who sued under their "no sodomy" law had no right to sue because they weren't being prosecuted under the law, thus they lacked STANDING. Standing is the right to sue under a particular law.

So, that rules out everyone but the person directly effected by the implementation of the new law as people who have a right to sue. Much of the TS stuff turned on her parents lacking "standing" to sue, because she was married, and her husband automatically has the right to act as her "guardian and next friend" under the law.

Next, lets look at the grounds to object to the new law. When a trial Court renders a decision there are certain limiting factors to the trial Court's right to render that decision. I'm going to ignore the extraneous stuff out and focus on "Judicial Activism." The trial Court is hemmed in by the following minimum restraints: The U.S. Constitution, the State Constitution, Stare Decisis (Must rule in compliance with previous rulings of higher Courts), and the facial meaning of the statute. In the case of T.S., the trial Court had to apply a Florida law that said (paraphrasing) that the Judge should determine first whether or not she was in a persistent vegetative state and then if she was, what her wishes would be.

The trial Court is the only Court that hears days and days of live testimony. None of the appeals Courts hear anything beyond the lawyers, although they will review the "record" or all information given to the Court and the tape of the earlier proceedings.

The trial Court is where the application of the facts to the law is made. This is crucial. If it is a Jury decision, the Jury decides the facts and applies them to the law-- the Judge tells you the law and what it means. With no Jury, the Judge does both.

On appeal the standard of review concerning the application of facts to the law can vary but is usually called, "Abuse of discretion" or "Plainly and palpably wrong" when the judge is making decisions based on facts because the trial Court is the one who heard the testimony, listened to the people and waded through all the non verbal cues in the Courtroom. So, the appeals Court can send a case back if the Judge read the law and thought it meant X when it really meant Y, and his decision was affected by the difference, but not because Judge didn't believe Jane Doe when she testified and s/he should have.

Thus, the appellate Court is "not to substitute its judgment for the judgment of the trial Court." (I can't recall where this is from, but it was drilled into my head somewhere.)

Thus, your appeal is usually based on an assertion that the law was improperly interpreted and meant something else, or that the decision was not in light of the facts as accepted, or least frequently, that the "great weight of the evidence was against the facts as accepted."

In TS's case, this means that the trial Court made a decision, after hearing all the evidence, that TS was in a persistant vegitative state AND would have preferred to die rather than be hooked up to machines. These were Facts the Judge decided. Her parents could appeal on several grounds, but there is a high burden of proof to meet.


Now, lets get back to Activist Judges, the maligned group du jour. For as long as I can remember this has been the rallying cry of the Traditional Conservative, AKA State's Rights People. Those who thought the Court overstepped its bounds when it widened the interpretation of the "Commerce Clause" to force Civil Rights on those who would not give them freely, "Privacy" to include reproductive privacy (AKA Abortion), and so forth. These are the "State's Rights" people-- they feel that the most important clause in the Constitution is that "any law not specifically allowed to the Federal Government is reserved to the States." (That's paraphrased BTW)

Do you see where I'm going with this?

The appellate Courts and U.S. Supreme Court Declined, as they should have as NON ACTIVIST COURTS to substitute their Judgment for that of the trial Court. They did not find that the trial Court got the law wrong. Pretty much everyone agrees that the Florida law as written means what the trial Court thinks it means.

In this case- the Courts did not seek to expand their powers, nor to carve a new meaning or right out of the Constitution, nor interfere with a law as written by a State, nor to substitute their Judgment for that of the trial Court. They (each of the Courts) acted in a manner consistent with how the Traditional Conservatives have previously claimed to believe they should act when they denounce the "Activist Judges."

Leading me to conclude what I have long suspected: Conservatives are all for Activist Judges when it comes to their own interests, they're just upset because they don't like the decisions with which they do not agree.

Although, I am considering the possibility that the Traditional Conservatives have been hijacked by the Neo-Conservatives, for whom there has never been any question of activism on the Courts-- Roy Moore being their poster boy. They want activism-- their kind of activism.

Tom Delay needs to get his ideology straight and learn some constitutional law. Idiot.

Where is the party for people who believe we need a social net for those who cannot feed themselves, education for those who break the law as well as for all young people, no pandering to big corporations, less reliance on Social Security, and less government in general?

Well, when I'm Philosopher King....