Judicial activism

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Judicial activism and revolution
If you want to perform a revolution, i.e. to fundamentally change the society and turn its values upside down, there are in essence three ways how to achieve for it:
  1. You can armor yourself and your friends and make and coup d'état attempt, a violent putsch as Bolsheviks did in 1917. This is however associated with putting your life at stake.
  2. The second option is to campaign before democratic elections in order to win the majority of voters, and then change the law in parliament. However, who has been in politics knows well how difficult it is to convince the public opinion.
  3. Last decades show that the easiest way to implement a revolution goes through the courts. You can only be a small group. You can even be completely alone. But if you have "your people" at the supreme court of the country, people who think like you, you have won. The court decides and the majority of citizens who firmly disagree with the ruling cannot help it. This is called judicial activism. Those who do not use napkins in front of their mouths speak also of judicial imperialism.
    — Vladimír Palko[1]
Undemocratic system of government
"A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called democracy."

Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. "Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary.

In this regard, judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate.

The cradle of judicial activism is USA.[1]

Courts in California — both state and federal ones — frequently engage in judicial activism. One major example of this is the relatively recent California Supreme Court decision In re Marriage Cases, wherein four California Supreme Court justices (who are appointed, not elected) unilaterally overruled the will of the people of the state of California, and legalized gay "marriage." Proposition 22, which recognized the traditional definition of marriage had previously been put in place by a majority of California voters, but this did not deter the liberal judges of the court from acting. In response, a majority of California voters passed Proposition 8, which amended California's Constitution to uphold the sanctity of marriage, stemming the tide of the liberal homosexual assault on marriage before it was too late.

Judicial activism should not be confused with the courts' Constitutionally mandated rule in enforcing limitations on government power and preserving the Constitutional structure of government, as they did in Bush v. Gore, Boy Scouts v. Dale, and D.C. v. Heller, and as the Supreme Court of the United States should have done with ObamaCare.

Judicial activism can occasionally have a positive impact, although this impact can typically be better achieved by other methods. Many have cited Bolling v. Sharpe, the companion case to Brown v. Board of Education, which desegrated schools in Washington, D.C. as an example. The Equal Protection Clause, which was cited in Brown, does not apply to the District of Columbia, only to the States. However, the Supreme Court unanimously ruled that segregated schools in the city were still unconstitutional because it was also a violation of the due process clause of the Fifth Amendment. Although the impact was clearly desirable, the due process clause typically only applies to legal processes such as criminal trials, not to segregation. Also, the same result could have been achieved simply by an act of Congress, since they have control over the District's school system. Legal scholars Cass Sunstein and Randy Barnett agreed in a debate that it was hard to reconcile the ruling with the Constitution, in spite of its positive impact.[3] These rare cases are therefore among the hardest for the Supreme Court to decide.

History

The phrase Judicial activism was coined by Arthur Schlesinger, Jr. in an article he wrote for Fortune Magazine titled The Supreme Court: 1947.[4]

Examples

  • Griswold v. Connecticut - 1965 Supreme Court ruling establishing a constitutional right to possess, distribute and use contraception.
  • Roe v. Wade - 1973 Supreme Court ruling claiming a constitutional "right" to abortion.
  • Lawrence v. Texas - 2003 Supreme Court ruling claiming a constitutional "right" to sodomy.
  • Obergefell v. Hodges - 2015 Supreme Court ruling claiming a constitutional "right" to same-sex "marriage".
  • The Nicaraguan Supreme Court ruling allowing incumbent president Daniel Ortega to contest the 2011 election. The Nicaraguan constitution forbids an individual from serving as president for more than two non consecutive terms, disbarring Ortega from filing for reelection on both of these counts. Daniel Ortega, not willing to give up power, had the Sandinista-controlled Supreme Court overrule the current law as being in "violation" of human rights.[5]
  • The Israeli Supreme Court is known for making ideologically based decisions and issuing rulings in favor of the country's Left camp and against its opponents.[6] Examples of this include forcing the Israelis government to recognize same-sex "marriages" performed abroad.[7]

Contract law

The Seventh Circuit has criticized as "judicial activism" an interpretation of a contract beyond its clear meaning. "Thus, when a contract is unambiguous, 'we refuse to indulge in judicial activism' by 'construing the [contract] beyond its clear and obvious language ....' See Heller v. Equitable Life Assurance Soc'y, 833 F.2d 1253, 1257 (7th Cir. 1987)." Grun v. Pneumo Abex Corp., 163 F.3d 411, 420 (7th Cir. 1998).

See also

References

  1. 1.0 1.1 Vladimír Palko. "Revolucionári v talároch (Revolutionaries in gowns)" (in Slovak). Impulz 2009 (4). http://www.impulzrevue.sk/article.php?515. Retrieved 9 Jul 2016. "Ak chcete uskutočniť revolúciu, od základu zmeniť spoločnosť a prevrátiť jej hodnoty hore nohami, máte tri možnosti. Môžete vyzbrojiť seba a svojich spoločníkov a urobiť násilný prevrat. Boľševici tak urobili v roku 1917 v Rusku. Samozrejme, môžete pri tom prísť o život. Druhá možnosť je agitovať, získavať hlasy, vo voľbách získať väčšinu, a potom zmeniť zákony v parlamente. Pravda, kto bol v politike, vie, ako ťažko sa získava väčšina. Posledných päťdesiat rokov ukazuje, že najschodnejšia cesta uskutočnenia revolúcie ide cez súdy. Môžete byť iba malou skupinkou. Môžete byť dokonca úplne sám. Ak máte na najvyššom súde krajiny „svojich ľudí“, ľudí, ktorí rozmýšľajú ako vy, máte vyhraté. Súd rozhodne a väčšina občanov, ktorá s rozhodnutím bytostne nesúhlasí, si nepomôže. Toto sa nazýva súdnym aktivizmom. Tí, čo si nedávajú servítok pred ústa, tiež hovoria o súdnom imperializme. ...Kolískou súdneho aktivizmu sú Spojené štáty americké.". 
  2. R. Albert Mohler, Jr. (2015). We Cannot Be Silent: Speaking Truth to a Culture Redefining Sex, Marriage, and the Very Meaning of Right and Wrong. Harper Collins, 181. ISBN 978-07180-32487. 
  3. [1]
  4. Legal Innovations in Asia: Judicial Lawmaking and the Influence of Comparative Law
  5. Nicaragua’s Presidential Elections: How Daniel Ortega Could Shame Democracy - The American Heritage Foundation
  6. The Threat to Israeli Liberties from the Israeli Supreme Court - The American Thinker
  7. Israel's Supreme Court Approves Same-Sex Marriages Performed Abroad - Associated Press