America’s next issue: Judicial Activism
Unless there is remission, the American body politic will die of this kind of cancer
From, Kentucky Citizen Digest, January/February, 2001.

I am one of those people who look forward to sitting down in front of my television set every four years to enjoy a long evening watching the national presidential election. To me — political junkie that I am — this is the ultimate form of entertainment.

It is a ritual I strictly observe.

My wife knows the routine. She also knows what her role in the ritual is. While my job is to sit there, glued to the set, observing every change in the count.  Her role is to walk into the room several times during the evening and — seeing me sitting there glued to the set — suggest that I get a life.

This year, however, the ritual lasted a little longer than normal. The television was on a little more than it usually is; I spent a little more time in the easy chair than I normally do; and my wife, God bless her, was forced to reprise her role in the procedure a little more often than she had foreseen.

My wife’s solution to the controversy was indeed a unique one: “Everyone needs to go home and get some sleep.”

Perhaps it would have worked. We will never know.

Although most of us will gladly try to forget what happened, there are a few things we really do need to remember. This election was a lot of things, but more than almost anything else, it was a teachable moment. For years, cultural conservatives have been warning about the activism of liberal judges. The policy wonks use the term “judicial activism” for this situation: the problem of judges who, instead of interpreting laws, inject their own political opinions into their decisions, thus creating new law.

The Florida Supreme Court case, which ruled that Florida had to extend its deadline for recounts, brought national attention to this issue. It claimed to “interpret” a law that said clearly that the deadline for recounted ballots was seven days. It interpreted the seven-day deadline to be 19 days. That’s what you call creative interpretation. It doesn’t matter who was harmed or who was benefitted by the decision: it happened to be Bush who was harmed and Gore who benefitted. Had it been the reverse, the decision would have been equally odious.

What does this have to do with the traditional family?

For whatever reason, most judges are not socially conservative. They tend to be pro-abortion, pro-homosexual
rights, and fond of social engineering (school busing is a good example of this).

In fact, it could be argued that most, if not all, of the anti-family victories in the last 30 or 40 years have
resulted from this very thing: judges who decide to make law from the bench, rather than interpret the laws we have made through our elected legislators.

How was prayer thrown out of schools? How was abortion on demand made permissible in all 50 states? How have pro-homosexual groups furthered their agenda in this country? — through activist judges in our nation’s courts, that’s how. Many of us remember the 1992 Wasson decision here in Kentucky, in which the state’s anti-sodomy law was struck down by liberal judges who claimed the constitution (which was silent on the issue) told them to do it.

If George W. Bush ends up as President (as of this writing, that is still not certain) one good thing will be that he is now fully aware of the problem of judicial activism. Since his administration will be appointing many judges to the federal bench, he will be a lot more likely to appoint judges who respect the law enough to not impose their personal political opinions on the rest of us.

But the teachable moment is not just for George W.  What about the rest of us?  Have we learned anything?
 
 
 

Key Family Foundation Contacts: Kent Ostrander, Executive Director Martin Cothran, Senior Associate Policy Analyst