Tag Archives: judicial activism

We’ll see about ‘judicial activism’ from SCOTUS nominee

Donald J. Trump says he will reject any candidate for the U.S. Supreme Court who advocates “judicial activism.”

Well now. How about that?

Here’s part of what he said in a radio address:

Judges are not supposed to rewrite the law, reinvent the Constitution, or substitute their own opinions for the will of the people expressed through their laws,” Trump said. “We reject judicial activism and policymaking from the bench.”

“In choosing a new justice, I will select someone with impeccable credentials, great intellect, unbiased judgement, and deep reverence for the laws and Constitution of the United States,” he added.

Justice Anthony Kennedy’s upcoming retirement from the Supreme Court has launched a serious national debate over the future of what many call “settled law,” meaning the legalization of abortion in the United States.

U.S. Sen. Susan Collins, R-Maine, said the next justice must leave his or her hands off of Roe v. Wade, the 1973 ruling that legalized abortion. Any hint of overturning it, she said, is a dealbreaker.

That brings up a critical point. If Roe v. Wade is “settled law,” does the court run the risk of becoming a panel of “judicial activists” if it decides to repeal any or all of the reproductive rights guarantee?

The president has said he would appoint a justice who would overturn Roe, but then has said he won’t ask any of the candidates that question explicitly. He’ll know their views on the issue if he takes time to read their writings or understands their notion of the how justices should rule on these matters.

I guess I could add that judicial activism isn’t  a malady that afflicts only liberal judges. Conservatives can get pretty damn activist, too.

Alabama's Roy Moore: judicial activist

Judicial activism is alive and well on one state’s bench, and it’s not a state where one would expect to find such a thing.

It’s in Alabama, where the chief justice of that state’s Supreme Court, has decided that the Highest Court in the Land — the United States Supreme Court — declined to overturn a lower federal court ruling that overturned the state’s ban on people marrying others of the same gender.

The high court, then, in effect endorsed the lower court ruling. The state’s ban on same-sex marriage is overturned, along with bans in 38 other states — including Texas.


As USA Today notes in an editorial, same-sex marriage has become as divisive an issue as the civil rights battles were in the 1950s and ’60s. Most Americans support same-sex marriage now, although in the Deep South, opponents of it remain in the majority.

Still, the entire nation is governed by a single Constitution and the federal courts are empowered to interpret that document in the manner they deem appropriate.

Federal judges have been striking down the bans generally on the grounds that they violate the 14th Amendment to the Constitution, the one that guarantees “equal protection” for all citizens under the law.

Justice Moore, though, doesn’t see it that way, even though he swore an oath to protect and defend the U.S. Constitution.

Don’t conservatives oppose judicial activism? Don’t they rail continually at judges who put their own bias above the law?

Alabama’s top state judge is on the wrong side of this issue. Period.




Here's your judicial activism, Sen. Cruz

Ted Cruz brought it up, so I’ll continue running with it.

The freshman U.S. senator from Texas accused the U.S. Supreme Court of engaging in “judicial activism” when it refused to review state cases relating to same-sex marriage. Activism? Hardly. Restraint? That’s more like it.

The Republican’s silly assertion brought to mind a conversation I had in 2009 with a true-blue judicial activist, who was damn proud of his role in correcting mistakes the legislative body in his country makes on occasion.

Meet Salim Joubran, a member of the Israeli supreme court. I made his acquaintance in June 2009 while traveling through Israel with four other West Texans as part of a Rotary International Group Study Exchange. Our group met him in Jerusalem.

Judge Joubran was unapologetic about his activist nature.

His take on the court’s role in Israel is that judges have to correct mistakes that the Knesset — the Israeli parliament — makes in enacting certain laws. “We are respectful of the Knesset,” he said, “but the court’s activism is necessary.”

Joubran said that Israel doesn’t have a constitution. National law, therefore, makes it “virtually imperative that judges correct mistakes in laws approved by the Knesset,” I wrote after visiting with Joubran.

We’re proud in this country of our judicial system. I know I am. It works well most of the time. I’m not going to advocate for the form of judicial activism that Salim Joubran practices while interpreting Israeli law.

But I’m going to draw a conclusion about how some American politicians define the term “judicial activism.” It’s usually used as a pejorative by conservative pols who take issue with what they see as “liberal” court rulings.

Fine. However, conservative judges can be activists, too. I’ve already cited the Citizens United ruling in 2010 as an example of conservative judicial activism.

I cannot recall five years after meeting with Judge Joubran whether he’d be considered a liberal or conservative judge. He’s an activist — and proud of it.

I found it refreshing and, frankly, courageous.

If only more judges in this country stood up for their own activism and were willing to defend it in front of anyone who challenged them.

Cruz now favors activist federal government

Ted Cruz keeps giving me — and others — so much grist for commentary.

The freshman Texas Republican U.S. senator now has this doozy of an idea. Let’s amend the U.S. Constitution to prevent states from overturning bans on same-sex marriage.


This comes from a tea party darling, someone who’s railed time and again during his still-brief time in the Senate over federal government overreach into states’ business.

Not so, however, when it comes to one more issue that now needs to become part of the federal Constitution.

Oh, Ted. Keep delivering these hits. Please.

Cruz got angry at the U.S. Supreme Court over its refusal to hear some state cases involving the overturning of bans on gay marriage. He called it a matter of gross judicial activism. Indeed, as a learned friend of mine noted, the high court exercised “judicial restraint” in refusing to hear these cases.

That won’t deter the runaway freight train aka Ted Cruz.

He’s going to try to get Congress to approve a constitutional amendment that places federal authority over state authority.

I swear I understood Cruz was a champion of states’ rights. What happened?

Oh, I almost forgot. Cruz wants to run for president in 2016 and he’s got to appease that right-wing GOP “base.”

One more reason to detest Ted Cruz

That settles it: Ted Cruz is my least favorite of the 100 men and women who serve in the U.S. Senate.

Why the additional scorn? Well, the freshman Republican from Texas said this about the Supreme Court’s decision to refuse to review state laws banning same-sex marriage:

“This is judicial activism at its worst.”

OK, he said some other stuff too in criticizing the high court. He accused the justices of “abdicating its duty to uphold the Constitution.”


Judicial activism, eh?

I think I can come up with at least one greater example of judicial activism perpetrated on this nation by the Roberts Court, one of the more so-called “conservative” courts in the nation’s history. Let’s try the Citizens United case.

Remember that one, Ted? That’s the case that determined that corporations are people, too — to borrow Mitt Romney’s (in)famous phrase during the 2012 presidential campaign. The court decided to let corporations spend all the money they wanted on political campaigns, just like regular folks. It determined that multi-zillion-dollar business interests have as much say in determining who gets elected as poor schleps like me who might want to write a $20 check to the candidate of my choice.

So, if you’re a candidate who then gets elected, who are you going to listen to more intently: the mega corporation or the individual contributor?

That, Sen. Cruz, is how I would define judicial activism.

This label often is used by conservatives to rip apart liberal judicial rulings. These critics, such as Cruz, ignore at their peril their own brand of judicial activism.

The Roberts Court showed it can be as activist as, say, the Warren Court was in the 1950s.

Cruz surely knows this.

A dear friend of mine who visited my wife and me this past weekend served in government and journalism for more than 40 years. He said of Cruz, who he described as “smart as they come”:

“Intelligence is inherited. Wisdom must be earned.”

No ‘hails’ to this new chief justice, please

Nathan Hecht is going to become the next chief justice of the Texas Supreme Court.

I’m not surprised Gov. Rick Perry would pick Hecht to succeed Wallace Jefferson, who is resigning to return to private practice. Perry — who’s served as Texas governor longer than anyone in history — seems to like longevity, and Hecht is the longest-serving member of the state’s highest civil appeals court. He’s also among the court’s most conservative members, which of course fits Perry’s litmus test perfectly.


Hecht, though, isn’t a good pick for a couple of reasons. First of all, he’s had some run-ins with Texas’s ethics rules relating to alleged misuse of campaign funds and his reported acceptance of more than $150,000 in discounted legal fees. Still, Perry found it OK to praise Hecht’s integrity … blah, blah, blah.

Maybe more important, in my view, is that Hecht represents the courts’ radical shift to the right, which has occurred over many years.

There once was a time when the Supreme Court was seen as a plaintiff’s paradise, where folks could sue big corporations and then appeal it to the highest civil appellate court and get, say, a verdict overturned or modified in their favor. The pendulum has swung dramatically in the other direction, so much so now that the court is viewed as overly friendly to those big corporations who get sued on occasion.

Hecht represents the court’s radical change in attitude.

To be sure, conservatives in Texas and elsewhere love to criticize liberal judges for being “activist.” They ignore the absolute fact that conservative judges and courts can be every bit as activist as their more liberal colleagues.

The Texas Supreme Court’s radical shift from one level of activism to the other extreme doesn’t make it more fair or balanced or unbiased. It just shifts the unfairness, imbalance and bias to the other side.

That shift is what Nathan Hecht brings to his new job.