Activist Shmactivst

Of all the lies and half-truths that spring from the mouths of politicians, the pernicious and pervasive use of the phrase "activist judges" to demean well-intentioned jurists surely is one of the worst. Even the late, great Supreme Court Chief Justice William Rehnquist hated the phrase.

Everytime a judge makes a decision, any decision whether you like it or not, that judge is "acting." Even when the Supreme Court decides not to review a case it is "acting." To judge-- to choose between competing arguments-- is to act. Every judge every day, therefore, is an "activist judge" in the honest meaning of the word and, therefore, no judges are the sort of creepy "activist judges" that President Bush and his cronies in Congress want you to be afraid of. Anytime you hear someone call a judge an "activist judge" all it means is that the person doing the calling didn't like the decision the judge just rendered. Nothing more. Nothing less.

So when the President says, as he did today, that "activist courts have left our country with no other choice" than amending the Constitution to ban gay marriage, he is really saying two things that aren't exactly true. First, there are plenty of other options aside from a federal constitutional amendment that Americans may choose from to protect marriage-- and, indeed, Americans all over the country are choosing them, in the form of ballot initiatives and state statutes that ban same-sex marriage. And don't forget the Defense of Marriage Act, the federal statute which has been on the books now for about a decade. That, too, is a choice Americans made long ago in on the debate over same-sex marriage.

And, second, the President's bogeyman, "activist courts" (that's "activist judges" to you and me), haven't done anything but interpret a state law here and there in a way that permits same-sex couples to be considered married under the law. If the argument for that position were completely untenable, or even just not likely to be embrace in the future by bright judges, there would be no need for the added layer of protection that conservatives seek to place via the amendment. You want to go after activists? Go after the ones trying to change the constitution. Now, that's an act you don't see performed every day.

By  |  June 5, 2006; 5:00 PM ET
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Great blog today on activist judges. I'd add one thing, specifically in connection with President Bush's assertion that the Federal Marriage Amendment is necessary to prevent "activist judges" from imposing their views on Americans.

The FMA will do more than that. It will also prevent state legislatures, and voters in states that conduct referenda, from legalizing gay marriage should they choose to do so.

So it is not just "activist judges" the FMA blocks. It is democracy itself, and the right of states to exercise their traditional control over domestic relations law.

Activist, schmactivist indeed.

Posted by: Meridian | June 5, 2006 06:16 PM

How would an amendment requiring the approval of 67 out of 100 senators, 290 of 435 representatives, and 38 out of 50 states block democracy? If it is anti-democratic, then so is the 13th Amendment, which blocks the ability of states to legalize slavery, should they choose to do so.

Posted by: Roger | June 5, 2006 06:37 PM

Thank you for pointing out that everything is an act and a choice. Even when you do nothing you choose to act in a certain way.

As for the FMA: What was it that was once said about labratories of democracy? Massachussets has not as yet suffered any ill effects under their system and people in Indiana are free to ignore the marriage licenses issued in that state. Ironic that these boys who so proudly fought for "States' rights" just a few generations ago seem to be cringing at the concept now.

The Constitution has been changed only rarely and for items of great national importance that cannot be handled by the states. This doesn't meet that requirement.

Posted by: Anon from DC | June 5, 2006 06:40 PM

What kind of fools do you think we are? While it may be true that literally any time a judge issues a decision he is "acting," the term activist has come to be associated with legal decisions founded upon a positivist view of law; one that allows the judge to apply discretionary interpretation based on external factors to derive an overall "intent," rather than in a strict reading of the wording of the law. This extends to situations where the judge's decision is completely at odds with the actual words of the law and constituion or extend new meanings based on "evolving" standards, rather than those applied and assumed when the laws were written.

In this way the 14th amendment has come to include nearly all the elements of sexual equality including co-ed bathrooms and "same sex" marriage that was as recently as in the mid-seventies posed as a necessary and separate equal rights amendment. Certainly if the American people in the 1970s thought that the 14th Amendment did not extend to sexual equality absent a constitutional amendment, nothing but legal action by judges has changed the Constitution.

This common use of the term activist and activism can be seen in this afternoon's on-line Washington Post where a story and headline describes as activists people who commit sacrilege by taking communion contrary to the dictates of the Catholic Church. Here activism connotes a positive action to hide an evil one: this was as much sacrilege and is as offensive as someone who disagrees with the laws or beliefs of Judiasm by drawing swasticas on a temple or opposes Islamic extremism by throwing pig's blood in a mosque. Of course in the literal sense it is also activism. Everyone taking communion acts in some way on their faith and belief. But here activism has a different accepted meaning, those who are willing to step forward and apply special rules of conduct unto themselves to bring about change in their favor. A meaning not unlike the application of activist to a judge who applies his or her unique views to the Constitution. And with a parallel disrepect for democratic processes that might be considred a political sacrilege. These jusdges are not unlike the ayatollahs who issue fatwahs against infedels to preserve Islamic law, only they do so to advance their secular agenda.

Posted by: constituionalist. | June 5, 2006 06:45 PM

The country is facing dire issues.... mounting chaos in Iraq, increasing threats on both U.S. borders, soaring gas prices global warming, out-of-control debt... so President Bush and the GOP Senate are going to debate the marriage amendment to the Constitution.

This highly-charged political ploy is just in time to attract attention from the passage of other legislation this week... like the "record-size emergency spending bill".... an over $100 billion spending package.

Or the legislation rolling back the estate tax with a potential cost of $1 trillion (yes TRILLION).

Does this make sound fiscal sense?.... spend more and take in less.

Since it doesn't, Bill "I Want To Be Your President" Frist, GOP Senate Majority Leader, rushed to place this time-wasting and attention-grabbing amendment on the floor schedule.

While Bush in his Sunday radio address pushed for the amendment to put those nasty "activist judges" in their place, calling the amendment a "defense of the stability of society," knowing full well that the amendment will never make it out of the Senate.

Note to Bush.... a Constitutional marriage amendment won't stabilize society, but OCEANS OF DEBT will destabilize our country for generations to come!

This obvious pandering and reckless fiscal policy should cost them in November.

Posted by: Truth Hunter | June 5, 2006 07:27 PM

A reader posed this question:"What kind of fools do you think we are?"

Ans.: The kind that would write this:

"These judges are not unlike the ayatollahs who issue fatwahs against infedels to preserve Islamic law, only they do so to advance their secular agenda."

Chief Justice Rehnquist puts it all in perspective:

"Federal judges were severely criticized 50 years ago for their unpopular, some might say activist, decisions in the desegregation cases, but those actions are now an admired chapter in our national history," he said."

What the Chief Justice may have been referring to:

From The Southern Manifesto (1959):

"We regard the decision of the Supreme Court in the school cases as a clear abuse of judicial power. It climaxes a trend in the Federal judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people.

The original Constitution does not mention education. Neither does the 14th amendment nor any other amendment. The debates preceding the submission of the 14th amendment clearly show that there was no intent that it should affect the systems of education maintained by the States. "

Posted by: MC | June 5, 2006 07:46 PM

The phrase Activist Judge/Court has replaced Outside Agitator in the vocabulary of folks who want you to be afraid when there is nothing fear.
Personally, I prefer leaders who can disagree with court decisions on the merits of a ruling rather than utter meaningless sound-bite ready phrases that don't even begin to touch on the issue. Don't talk to me about the judge, talk to me about what is wrong, from a legal stand point, with his/her decision.
Either that or President Bush is giving away more than he means by using the phrase. Perhaps he really wants judges that don't act.

Posted by: AC | June 5, 2006 07:48 PM

(see Posted by:, for the first line)


we all know, the rumour of a violent military power that is out to get us, that has been injected-into the American Public

through covert psy-ops...actually straight ahead propaganda...just yankin your chain a little bit...washingtonian cleverness aside..

Paul Wolfowitz, a PNAC inspired congressional agenda? a falsehood, slammed down the throats of the American public by a complicit Democratic and Republican congress....if you look at McCain, you know he was in the inside of this deal...

those beady little eyes, focused on Fallwells chubby cheeks...

yes, it was known ahead of time, you were going to "war," an opportunistic invasion to support the Arabic holders of the black gold, before this president was elected....did Gore really lose? did he? or is it an electronic illusion...voter fraud?

or did the nation?

all that aside,
would GORE have been this bad? are you fricking crazeeeeeeeeee?

would he have been positing gay marriage as the reason the country was failing?

as he tried to sneak estate tax ban through the congress?

is gay marriage just a "look over here,?" what else could it be? Does it make sense? Is there any illusion of "higher purpose," to his actions? hardly.

is he pandering to the demagoguery vote? yeparoo.......

is little Georgie Bush, creating hatred? damn right.

and "I oppose gay marriage," because?

take the trash out....expel the s-not in the whitehouse...from your snout...

give it back to him, arrest him, and terminate his ability to do this again...ever, this lifetime or his descendants...

speaking of perpatrators,

do you mean the false flag perpatrators,

the CIA/HAYDEN/CHEYNEY/RUMSFELD/NEGROPONTE/NSA boyz in _you_ , up to the hips...

you know the DOD, monied cabal that wants to have "war for life," so they don't have to worry about the future....eff your future....

you mean the people that served alongside George H.W. Bush with the cia/mafia/bayofpigs fiasco, which became the Nixon watergate fiasco?

so we could gain control of a region and assist _their_ friends...the ones that will give them money and excuses to use the military?

THE FRIGGIN SAUDIS AND UAE who risked their lives flying planes into the world trade center for us so we could have a rallying cry that was cool....

"remember 9/ many died"....right,

like about 1/4 of the number that died in firearms related crimes that year...

kiss my a-ss

what a load of crap.


and who trained Al Quaeda...the friggin CIA DID...

you gotta problem with that, them being on our friggin side?

because they are....they're the presidents boyz...they're going bass fishin this weekend...

after he damages a few qu_eers...


Posted by: we all need to be afraid of enemy terrorists... | June 5, 2006 08:12 PM

To MC I would point out that the activist desegregation decisions of the 1950s were necessitated by the equally activist judges of the the 1890s. Judges like Mr. Justice Henry Brown who found in Plessy v. Ferguson that:

"The object of the [Fourteenth A]mendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either."

Justice John Harlan in dissent warned about the harms of this type of activsm:

"Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law...In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case...The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficient purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution."

Fortunately it fell to his grandson to correct the error. Unforutnately, rather than simply correcting the error by pointing out that the Court erred, that equality means equality, the Warren Court chose a different more activist approach that applied its social standards of harm rather than the clear requirement of the 14th amendment for equality.

If the Amercian people believe in same sex marriage they and their legislatures can change the laws. They can change by majority vote in the state houses the definition of marriage and they can revoke the "Defense of Marriage Act" in the U.S. Senate and House.

Unless the result is achieved democratically we are condemned to a tyranny of the judiciary and continued social and political strife. This is not a fight for elite advocates in Court. Let the People fight this out in the halls of their legislatures. Nothing else can be legitimate or accepted.

Posted by: constitutionalist | June 5, 2006 08:24 PM

To Constitutionalist.

One of the problems with the Constitutional Amendment to stop activist judges argument is that it is self-defeating. If activist judges are like "ayatollahs who issue fatwahs" and hand down decisions "completely at odds with the actual words of the law and constitution" then they will ignore the language of the Constitutional Amendment.

Your citation of Plessy proves that point.

Posted by: MC | June 5, 2006 08:59 PM

Ah, the fine mind of Constitutionalist.

Hey: Const-baby: if you just want to make sure that the powerful stay in power, and the not-powerful stay that way, just come out and say so.

The pseudo-intellectual wordwrap just
makes ya look silly.



Posted by: Stanley Krute | June 5, 2006 10:49 PM

If the definition of an activist judge is one who overrules the will of our elected officials, conservative judges are the real "activist judges."

By this criterium, Judge Thomas is the most activist judge, and Judge Breyer is the least activist judge:

Of course, the real definition of "activist judge" is one with whom you disagree.

Posted by: Dan | June 5, 2006 11:18 PM

use labels,

can't think.

and ask you to do the same,

place them in isolation....permanently.

arrest and prosecute the simplistic labelers...

your president and complicit congress,

make a souffle of delay'

scramble him with some fried cunning-ham,,

and serve with some diced cheyney and truffles...


Posted by: I prefer to think that people who | June 5, 2006 11:58 PM

So what's the bottom line on both sides? What is it that causes such opposition? The conservatives want the definition of marriage protected before our nation, our children, eventually lose all understanding of right and wrong. Because that is in the best interest of all. I believe that sums it up.
What exactly are the liberals fighting for? Is it in the best interest of all people or only self? I am trying very hard to be open minded and follow anythoughts to find out if there is any validity to these arguments. I honestly have not heard one arguement that is convincing. Karen

Posted by: Karen | June 6, 2006 01:29 AM

"The conservatives want the definition of marriage protected before our nation, our children, eventually lose all understanding of right and wrong."

Almost all gays were brought up in the families of heterosexual married couples. What happened?

Do you really believe that a legal definition of marriage is gong to save our children from losing all understanding of right and wrong? And a gay couple cannot teach a child about right and wrong?
Are gay's more likely to commit a crime? I have seen no evidence of that.

Posted by: Bob | June 6, 2006 02:22 AM

Stan were you growing up in the 6o's-cool.
It's all about the man staying in power,really? Why don't you give your resources ($,and time)to the party of your choice,locally and then nationally so you don't sound like a conspiracy theorist.
Judges need to quit legislating from the bench. Every time they "act" contrary to my beliefs it's not activism,put when they ignore what is literally on the paper.

Posted by: Allen | June 6, 2006 07:50 AM

Constitutionalist - do you propose rejecting Marbury v. Madison? Your approach seems to rest on arbitrary line-drawing as to how far judges should go in interpreting the Constitution, and is completely prone to your or a judges' own subjective determinations. The most intellectually honest thing from the perspective on judicial activism that you take would be to dismantle judicial review altogether, which would be a tremendous blow to the balance of powers. Are you willing to go that far?

Posted by: DC in DC | June 6, 2006 10:50 AM

"The conservatives want the definition of marriage protected before our nation, our children, eventually lose all understanding of right and wrong....I am trying very hard to be open minded and follow any thoughts to find out if there is any validity to these arguments. I honestly have not heard one argument that is convincing. Karen"

Karen, I would urge you to try a little harder.

For decades interracial marriage was illegal in the United States. The supporters of "anti-miscegenation" laws were no doubt concerned about the institution of marriage. In 1967 those crazy activist judges on the U.S. Supreme Court held such laws unconstitutional:

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law."

Imagine the impact that such a decision had on our children -- they surely lost all understanding of right and wrong.

Note that the lower court in Loving, justified the law on religious grounds:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. The fact that he separated the races shows that he did not intend for the races to mix. "

Posted by: MC | June 6, 2006 01:13 PM

it's always about relationship,

and the relationship is only as good as the honesty within it...

and you can't mandate that.

to the cluesless that want to label things right and left...

please you're annoying...

as an engineer, watching the the lilliputians discuss with the belephuspewlians whether to open the big end or the little end of the poached egg is

to watch liberals/neocons/right/left/democrats/republicans...

in congress there is only the landed vs the unlanded and the latest ploy to keep them confused...

you labelers are prime examples of confused...and disgusting ly simple...

Johnathan Swift covered all of this a century or two about small minds..



anything a cokehead, drug addict, draftdodger, "avoider," would come up with and to actually discuss that bs is like admitting that you're anally retentive and there's no hope for recovery...

do the world a favor and shut up.

Posted by: you're all kinda stuff and weird... | June 6, 2006 01:28 PM

"The conservatives want the definition of marriage protected before our nation, our children, eventually lose all understanding of right and wrong."

Like MC I don't see the connection between allowing ANY two consenting adults to marry and understanding right from wrong. To expand on the comment about anti-miscenegation laws, part of the argument for prohibiting "mixed" marriages (or indeed any sexual contact) was that the offspring of such pairings were more likely to suffer from "idiocy" (mental retardation) and other problems. We now know that is not true. I don't understand why we again have to hear "The children are in danger." It's not true.
I also notice that with all of this talk about PROTECTING MARRIAGE (or at least the definition of marriage) no one has suggested we amend the Constitution to outlaw divorce. Wouldn't that be even better?

And speaking of "protecting a definition": Traditionally, a conservative is one who wants LESS government interference in private life.

Posted by: NIW | June 6, 2006 04:03 PM

A friend of mine has a suggestion that merits consideration: Get the government completely out of the marriage business. Leave it to religion and contract law if people want to make arrangements with each other. Government -- on all levels -- could then deal with people as individuals, not artificially as couples, and couples could make whatever arrangements and agreements suit their circumstances.

Posted by: HerbS | June 6, 2006 11:04 PM

well, it seems to me that such

a shameless political ploy to use stupid people...

the gay marriage thing...

that it
would be addressed as that on national television and by the media....

does the president really have homophobia or is he just

a user?

saying that a few times publically or when anyone brings the issue up would be the same thing as

addressing the truth of the situation...

he could care less,

just like he could care less about America,

it's about what he can get, he's the Used Car Salesman of the Elite....

it's all about his needs....f-uck yours.


I love people that lie as a way of life

it's so much fun to help them feel their own pain...

that's what I want, the president and his people to feel the pain of their lies directly, physically, viscerally and in direct accordance with the deaths, injuries, and familial unhappiness that they cause...

thanks .

Posted by: and did the President fire who was responsible for the Valerie Plame leak? or is he just a shameless liar

Posted by: an honest question, answer it... | June 7, 2006 12:27 AM

The Democratic Process Bushwhacked Again

In its latest act of desperation to regain a measure of popularity, the Executive Branch of the United States government has once again resurrected the gay marriage issue. Rallying his homophobic following under the battle cry of., "crush a queer for Christ," Mr. Bush is attempting to amass support from his final remaining alliance, the radical right. Rather than addressing issues such as the collapse of the economy, the sacrifice of blood and limb for oil and the erosion of American integrity in the global arena, Mr. Bush and his comical sidekick Karl Rove have once again shifted the focus to gay marriage. Had Mr. Bush paid attention to introductory courses in Civics and Government during his halcyon youth, he would have learned that the purpose of a constitution is to prevent a majority from legislating the rights of a minority.

The unfortunate reality of Mr. Bush's strategy is that it will very likely work. The majority of American voters have absolutely no opinion concerning gay rights. Furthermore, this same constituent has no opinion about Democracy, at all. More Americans voted for the last American Idol than voted in the 2004 Presidential election. In the state of Ohio, the Republican-led Board of Elections undermined the Democratic process during that election by insuring a shortage of voting machines in Democratic strongholds such as college campuses. The Republican Party spends a king's ransom on demographic studies and human nature analysis. The under forty, cell phone generation is notoriously impatient and apathetic. Although this subculture will stand in line all night awaiting a new video game, when confronted with lines at polling locations they will instead proceed to the comfort of their homes to watch "reality" television, not to be mistaken for the evening news. One cannot allocate blame to the Republican strategists for capitalizing on this vacuum of political consciousness. The conspicuous lack of Democratic backlash to this strategy causes one to wonder if Democratic leaders have found complacency if not profit from the current situation.

When Thomas Jefferson and the authors of the United States Constitution proposed this grand experiment called the United States of America, they described it as, "a government by consent of the governed." We have, instead, become a government by default of the governed. There is no separate Bill of Rights for African Americans, Hispanic Americans, Jewish Americans or Gay Americans. (It is difficult to understand a government that discriminates against a group based upon 'how they do it'). Perhaps the only way to provoke generations X and Y to exercise their right and responsibility to vote is for the government to begin regulating cell phone minutes and iPod downloads. Despite the fact that the majority of Americans do not participate in the Democratic process, all Americans will share in the blame for the policies of the American government. Until this awareness takes root in the hearts and minds of the majority, the American people will get exactly what they deserve.

--Quinn Stilletto

Posted by: Quinn Stilletto | June 7, 2006 12:42 AM

of what is going on:

does the president really have homophobia or is he just

a user?

Posted by: the essence of the question... | June 7, 2006 01:05 AM

It is disingenuous to ask that judges not "interpret" constitutional or statutory provisions. Congressional enactments are -- either intentionally or by virtue of incompetence -- notoriously dense or ambiguous (try ERISA, the Internal Revenue Code, the RICO statutes) or vague and open-ended (the wire-fraud, mail-fraud and bank fraud statutes, RICO [again], the antitrust laws). They require definition and context which can only be provided by the courts which are charged with applying their provisions in particular cases.

And as for the Constitution, how can one do anything with phrases like "deny ... the equal protection of the laws", "cruel and unusual punishment", and "due process of law" without interpretation? What "process" is "due" under what circumstances? "Cruel" by whose standards and "unusual" as compared to what? What constitutes "equal" treatment?

Don't forget that English Common Law was made by judges deciding cases -- not by statutory enactment. We have gotten far from that system and changed to a more European (read "French") system of codified law passed by the legislature. It still requires "interpretation".

What I really want, since federal courts are essentially trial courts, are judges who have experience trying cases and can run a decent courtroom, who enjoy being a judge (and not just the perks that go with it), who work hard, who display courtesy and patience toward litigants and lawyers, and who fairly apply the rules of procedure and evidence. That would be nice.


Posted by: HerbS | June 7, 2006 09:49 PM

funny ringtones

Posted by: | August 12, 2006 11:09 PM

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