February 2004
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Day February 21, 2004

“Activist judges,” judicial review, and the importance of an indepedent judiciary

I’m seeing an interesting trend in arguments being made against the actions of San Francisco mayor Newsom.  Opponents of same-sex marriage are picking up on Bush’s State of the Union attack on “activist judges” who use their “arbitrary will” to determine the law “without regard for the will of the people or their elected representatives.”  Since Newsom heated up the controversy last week, I’m seeing more and more conservative commentators and religious leaders (including Joe Fuiten here in Seattle) use the “activist” label to condemn judges who may not rule in their favor.  Even within the blogging community, folks like Fried Man believe that somehow legislation or citizen’s initiatives are more “democratic.” 

And there’s even a coalition dedicated to pushing a “Judicial Accountability Amendment” to hobble the powers of judicial review that have been the prerogative of the courts (and the Supreme Court in particular) since envisioned by the Founding Fathers and enshrined as precedent by Marbury v. Madison

It’s worth deconstructing this rhetoric a bit, and comparing it against the words and intent of the Founding Fathers concerning the role of the judiciary.  Is it somehow less “democratic” when the Supreme Court interprets a law, or rules that a law is unconstitutional?  Should we restrict judges to simply ruling on factual cases, and remove their ability to strike down laws?