In the NewsSenator Orrin Hatch Praises Federal Judge Who Established New Legal Rules and Principles May 23, 2006. When Sen. Orrin Hatch, R-Utah, properly paid his respects to a deceased federal judge, he praised the jurist (who was not a Supreme Court justice) for writing “landmark opinions establishing rules or principles that would later be adopted by the Supreme Court.” Hatch went on to praise a specific decision the judge made involving expert testimony. This decision, Hatch said, broke new ground and established a new standard (i.e., it did not simply apply law as written by Congress or as stated in the Constitution) with regard to expert witness testimony. Hatch acted properly in praising the judge and his work. However, his praise was at odds with a statement he made five years ago criticizing “ federal judges [who] deviate from the written law, and decide cases based on their own policy preferences or views of what is just or right; they in effect make up laws of their own despite the lack of legitimate authority for doing so. When judges twist the language of legislation to enact the policies they prefer, they usurp the rule of the legislature and destabilize the balance of power. … This is judicial activism, and it represents a direct attack on the democratic principles that are central to our constitutional system.” Hatch was not wrong to praise the judge for developing a new judge-made rule. And Hatch, or others, might respond that the specific example Hatch gave involved a procedural issue, an area peculiarly committed to the court’s discretion, as opposed to Congress’. Perhaps, but Hatch’s praise is still, unintentionally, revealing. The reality is that it is not a rare occurrence for judges to develop new rules and principles stated neither in statute nor constitution. The common law tradition, which stretches back for centuries, consists of judge-made rules for deciding cases. More recently, judges have developed their own rules for resolving constitutional questions. Judges apply tiered levels of scrutiny (strict, intermediate and rational basis) when applying, for example, the 14th Amendment, and they apply the multi-pronged Lemon v. Kurtzmantest to disputes involving church and state. Nothing in the Constitution mentions such tests; judges developed them on their own, and they have become broadly accepted standards for constitutional review. The real question is not whether judges are “activist” when they develop rules to help them decide cases. The question is whether they are faithfully vindicating the Constitution and other laws. It is past time to drop mindless rhetoric about “activist judges” and acknowledge the reality that the law and judging are more complicated than this glib slogan suggests. May 31, 2006. The New York Court of Appeals, New York’s highest court, heard oral arguments in a case challenging the denial of marriage licenses to same-sex couples. The webcast will remain available on the court’s website for several months. The case is Hernandez v. Robles. There are related cases similarly challenging the denial of marriage licenses that will likely be resolved by the court’s decision in Hernandez: Samuels v. Dept. of Health, Matter of Kane v. Marsolais and Seymour v. Holcomb. Get more information on the case. http://www.courts.state.ny.us/ctapps/
May 16, 2006. The Superior Court of Fulton County, Ga., ruled that a constitutional amendment recognizing only marriages between a man and a woman, and prohibiting any other form of relationship recognition and benefits, was invalid. The court ruled that the amendment violated Georgia’s “single subject rule,” which requires that constitutional amendments address a single subject only. The amendment in question had two sections, one defining marriage and one prohibiting any other form of relationship recognition or benefits. The court stated that some people who oppose calling same-sex unions “marriage” might want to recognize same-sex relationships in some other form. This was a procedural ruling. The court did not address the merits of marriage equality, and made clear that Georgians could decide to define marriage as the union of a man and a woman only, as long as the question was properly presented to voters. Find out more on the case, O’Kelley v. Perdue, and read the text of the decision. http://www.lambdalegal.org/cgi-bin/iowa/cases/record?record=210
Justice Ginsburg Says Judiciary Is ‘Under Assault’ May 2, 2006. Speaking at an American Bar Association event, Supreme Court Justice Ruth Bader Ginsburg described a Republican proposal to oversee the federal courts as a “really scary idea.” Republicans in the House and Senate have made various proposals for overseeing federal judges, including creating an inspector general who would report judicial misconduct to the Justice Department. Ginsburg said such plans were “very much like the Soviet Union was,” voicing the concern that judges would be placed under uncomfortable scrutiny. She criticized a breakdown of bipartisanship since Justice Stephen Breyer’s and her own confirmation hearing in the mid-1990s, interactions between judges and members of Congress that she described as long, but friendly. A decade later, Ginsburg reports that “the judiciary is under assault in a way that I haven’t seen before.” Ginsburg’s comments echoed those of former Justice Sandra Day O’Connor, who warned in March 2006 that attacks on the judiciary threaten fundamental constitutional rights and could start the United States on a road to dictatorship. March 28, 2006. Former Rep. Tom DeLay, R-Texas, said that Supreme Court Justice Ruth Bader Ginsburg and retired Justice Sandra Day O’Connor “don’t get it” when they criticize attacks on judges. As noted below, Ginsburg and O’Connor have recently, and forcefully, spoken out against radical attacks on the judiciary (O’Connor identified DeLay as one attacker, though without using his name). DeLay chastised the two justices, saying, “There are three branches of government. All wisdom doesn’t reside in … people in black robes.” DeLay’s comment builds and knocks down a straw man; neither O’Connor nor Ginsburg, nor any identifiable person, has claimed that “all wisdom” resides in the judiciary. In addition, the “black robes” reference may be perceived by some as a loaded one: another radical critic of the judiciary, James Dobson, has compared “black-robed” judges to white-robed members of the Ku Klux Klan. Other radical critics of the judiciary frequently use the term “black robes,” apparently in an attempt to create a menacing image of supposedly tyrannical “activist judges.”
Retired Supreme Court Justice O’Connor Warns United States Could Be Headed Toward Dictatorship March 9, 2006. Speaking at Georgetown University, recently retired Supreme Court Justice Sandra Day O’Connor warned that radicals who attack the judiciary threaten American’s fundamental constitutional rights. Although she did not use names, she criticized attacks by Rep. Tom DeLay, R-Texas, and Sen. John Cornyn, R-Texas. DeLay seemed to issue a veiled warning to judges who decided the Terri Schiavo case, and Cornyn wondered if there was a connection between controversial court decisions and violence against judges. O’Connor was quoted as calling threats like DeLay’s “a direct threat to our constitutional freedom.” O’Connor warned that undermining the independence of our judiciary could be the first step on a road to dictatorship. She cautioned that calls to impeach judges, strip courts of jurisdiction or cut judicial budgets are a cause for concern if such actions are designed as retaliation against judges making unpopular decisions.
Justice Scalia Scoffs at Controlling Law, Dismisses Fundamental Rights for GLBT Americans March 8, 2006. Speaking at the University of Freiburg in Switzerland, Supreme Court Justice Antonin Scalia, apparently responding to a question from the audience, said that there is no constitutional right to homosexual conduct. Scalia explained, “Question comes up: is there a constitutional right to homosexual conduct? Not a hard question for me. It’s absolutely clear that nobody ever thought when the Bill of Rights was adopted that it gave a right to homosexual conduct. Homosexual conduct was criminal for 200 years in every state. Easy question.” Fortunately, a majority of the Supreme Court disagreed with Scalia in deciding the Lawrence v. Texas case in 2003, where the Court held that private sexual conduct between consenting adults is, in fact, protected by the U.S. Constitution. Feb. 7, 2006. Speaking in South Africa, Supreme Court Justice Ruth Bader Ginsburg reported that she and retired Justice Sandra Day O’Connor were the subjects of an internet-based death threat in 2005. A Feb. 28, 2005, web posting read, “Okay commandoes [sic], here is your first patriotic assignment … [citation to foreign law by Ginsburg and O’Connor] is a huge threat to our Republic and constitutional freedom. … If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.” Ginsburg linked the threat to attacks by politicians who have sought legislation prohibiting judges from referring to foreign law or other authority. She charged that such attacks on the judiciary “fuel the irrational fringe.” |
