Stephen Markman supplies us with a vocabulary list of words and phrases to use to discern judicial activism. Some examples follow.

Spirit of the Law: Where the actual language of the law is incompatible with the policy preferences of a judge, it is not uncommon for a judge to claim that the “spirit of the law” nonetheless compels the preferred result. A judge may invoke such a “spirit” as a basis for decision-making as if somehow, via this necromancy, that which is not within the law may be conjured into it. Opinions relying upon a "spirit," nowhere incorporated in the actual language of the law, should be scrutinized carefully.

Balancing: The process of “balancing” rights and interests is predominantly a legislative, not a judicial, function. When, in the course of interpreting the law, a judge purports to engage in a “balancing” determination, more often than not he has misconstrued one of the allegedly-competing rights or interests. Concluding that one interest or right is entitled to a 30-percent weight, instead of a 70-percent weight in the “balancing” process not only constitutes an essentially standard-less, legislative decision, but it also implicitly concedes that neither of the rights or interests established by the lawmaker will be accorded full respect.

Public Policy: A judge will often resort to “public policy” as a basis for disregarding the words of the law. Unless such policy is grounded in the actual words of some law, this is simply another way for a judge to replace the determination of the lawmaker with his own determination of what the law ought to be. The most reliable basis for ascertaining “public policy” is for a judge not to examine his own sense of conscience, but to examine the principle repository of such policies in a democratic society, the actual enactments of representative, public bodies.

Notice, please, that each of these is based upon the premise that something other than the text of the Constitution or the law in question is superior to the text or texts being examined. That ultimately becomes the judgeÂ’s sense of what ought to be, rather than the views of the legislative and executive branches of government or of the people themselves. Thus, to take one example, the spirit of the laws forbidding racial discrimination requires racial discrimination as a matter of implementing a public policy of affirmative action, which balances the rights of minorities to preferential discrimination in a manner that outweighs the rights of non-minorities to non-discriminatory under the Constitution and the nationÂ’s civil rights laws.

Posted by: Greg at 11:40 AM | Comments (2) | Add Comment
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