Friday, August 20, 2010

Judicial Tyranny -- is there really such a thing?

A lot of conservatives, esp. Christian right-wing folks, such as Pat Buchanan, wrote that it is nothing less than "judicial tyranny", when Judge Walker overturned California's Prop 8, which banned "gay marriage".

But what exactly *is* judicial tyranny? Nobody is sure exactly. According to wikipedia entry, judicial tyranny can be traced back all the way to Thomas Jefferson, who lamented that a judge, who was often appointed for life, was able to exert his views upon the nation, even though the party that appointed him had long since faded from the scene. 

However, that is not how Pat Buchanan used the term. He is basically saying that the judge is defying will of the people. Since he's only one person, and there are bazillion votes in California that said yes to Prop 8, the judge had a tyranny over them.

Let is ignore the issue itself, which is controversial enough, and focus on the "idea" of judicial tyranny, and its cousin, "judicial activism", and its opposite, "judicial restraint".


I had previously wrote that any judge that seem to have acted against the "majority" is considered a "judicial activist". Apparently, a "judicial tyranny" is just an extreme form of "judicial activism", and if the judge simply rule for the majority, he acted with "judicial restraint".

But isn't an activist "good"? Activists are championing a cause, right? So why is "judicial activist" considered an epithet? Is that why they invented this new term "judicial tyranny"?

All laws are passed by the majority, are they not? And if the law is determined to conflict with the Constitution, the supreme law of the land, the "law" loses by default, correct? After all, it is the law of ALL US of A, not just California. US of A is a BIGGER majority than California, right?

Our Constitution is written so the three branches, judicial, executive, and legislative, can provide checks and balances upon each other (and states). So the judicial branch is expected to act against the legislative and executive branches if they get out of hand, and vice versa. If there was no judicial branch, Congress (legislative) can vote to get rid of all the Latinos, or Chinese, or whoever, and nobody will say anything about it. It is the "majority decision". But it can't be done, because it'd be unconstitutional, and the judicial branch will slap it down.

Judicial branch have the judges, and a judge's job is to interpret law, and if laws are in conflict, resolve the conflict, sometimes by making new interpretations, due to changing circumstances, at other times by striking down some or all provisions within the law. Judges are NOT supposed to care about "will of the people". Indeed, ALL laws reflect "will of the people", but some laws are stronger than others... such as the Constitution.

So does a judge have the power to overturn laws passed by the will of the people? Absolutely. It is given to them in the Constitution. And it is to protect your rights, so the majority can't abuse their power to take away your rights.

Thus, there is no such thing as judicial tyranny, or judicial activism.

What does that leave the people who is screaming "judicial tyranny"?

Sore losers.


Again, this analysis does NOT concern itself with the issues, but merely with the concept of judicial tyranny / judicial activism / judicial restraint. The label has been slapped on too many judges, as political epithets, when judges are apolotical (or at least, is supposed to be).

One more note: judge's influence on the laws are limited to what cases were brought before them, and most courts use random schedules to make sure nobody has an exclusive on certain types of cases.  So accusing them of activism, again, to me, is sour grapes.

Enhanced by Zemanta

No comments: