The Activist Judiciary

Martin Leatherman,

With Representative Tom DeLay calling for the dismantling and rearranging of the courts, and three contentious federal judicial nominations up for confirmation, judicial activism is again in the spotlight.

The conflict has its roots in the 1803 Supreme Court case Marbury v Madison, in which Justice John Marshall established the power of judicial review for American jurists.

His ruling enables the courts to overturn legislation that is deemed contrary to the Constitution, a precedent that solidified the role of the judiciary as a separate but equal entity in federal government.

Now, Republican members of Congress, saying that the courts have exceeded their mandate, have begun to push for more control.

According to the Associated Press, DeLay has been investigating several ways of doing this.

One option is scrutinizing the clause in the Constitution that states, “judges can serve as long as they serve with good behavior,” he said. “We want to define what good behavior means.”

DeLay told a Rotary Club meeting last week that “the Constitution gives us [Congress] the responsibility to create courts. If we can create them, we can uncreate them.”

He noted that the Constitution only specifically mentioned creation of a Supreme Court, and suggested having the 9th U.S. Circuit Court of Appeals meet in Guam.

The 9th Circuit has long been a bugbear for conservative legislators, who are continuously working for its breakup.

In July 2003 Congressman Lamar Smith (R-Texas) and Congressman Steve Chabot (R-Ohio) joined the fight with the creating of the House Working Group on Judicial Accountability.

“The fact remains that the judiciary is a co-equal branch of the federal government. They are subject to checks and balances. Congress is right to evaluate them when they behave like un-elected super-legislators,” Smith said.

Senator Minority Leader Harry Reid (D-Nev.) has decried Republican court reform efforts, which include limiting filibusters to prevent Democrats from blocking certain nominees.

In a letter to Senate Majority Leader Bill Frist (R-Tenn.), Reid accused the Republicans of trying “to break down the separation of powers and ram through their appointees to the judicial branch.”

Cases often cited by conservatives as examples of judicial activism are Brown v Board of Education and Roe v Wade.

More recently, in October 2004, the reasoning given by Justice Anthony Kennedy in Roper v Simmons, which banned the death penalty for juveniles, was vociferously criticized by DeLay for being activist.

In the decision, Justice Kennedy referred to the world’s “evolving standards of decency” rather than the Constitution.

In a speech at the Washington and Lee School of Law, Supreme Court Justice Antonin Scalia said he and other conservatives interpret law according to the intention of the Constitution’s authors.

He asked the audience to not to think of the Constitution as living, but to love it as a dead document.

Others believe that it is indeed a living document, one that should adapt over generations.

It’s a philosophy that the conservative Weekly Standard decries as an effort by the left to “enshrine its own policy preferences.”

That comment was made in response to a meeting at Yale University in April of the school’s chapter of the American Constitutional Society.

The meeting, entitled “The Constitution in 2020,” focused on “rehabilitating the Constitution” and investigated issues of globalism, religion, inequality, media concentration, gerrymandering and more.

An editorial in the Christian Science Monitor was critical of the current Republican push.

“The way to address disappointment with judges is not through congressional activism, but through the usual mechanisms: proper vetting of judicial appointments and the election of able politicians who make and confirm those appointments,” it said.

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Keyword search (activist judge): Google News, Yahoo News

Keyword search (living constitution): Google News, Yahoo News

Keyword search (supreme court): Google News, Yahoo News

Keyword search (9th circuit): Google News, Yahoo News

“Three judges are flash points in Senate clash”
Christian Science Monitor, April 20, 2005

“Smith and Chabot form judicial accountability group”
Lamar Smith Web site, July 23, 2003

Marbury v Madison
U.S. Department of State

Judicial Review

“DeLay criticizes Supreme Court justice”
Associated Press, April 19, 2005

“Delay tackles ‘liberal media, out of control judges’ on own turf”
Fort Bend Southwest Sun, April 4, 2005

Trying for a 9th Circuit split
The Recorder, February 11, 2005

“Cheney weighs in on judicial filibusters”
Associated Press, April 22, 2005

Sen. Harry Reid’s letter on judicial filibusters
March 15, 2005

Brown v Board of Education

Roe v Wade

Roper v Simmons

“Scalia gives lecture at W & L”
Richmond Times Dispatch, April 16, 2005

“What liberals want”
Weekly Standard, April 19, 2005

“The Constitution in 2020”
Yale Law School, April 8-10, 2005

“The Living Constitution”

“Overreaching on judges”
Christian Science Monitor, April 19, 2005


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