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".

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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.

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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.

Related articles by Zemanta

• In defense of the new judicial activists. (slate.com)
• Judicial Restraint or Constitutional Abdication? (reason.com)

Interesting: does Circuit Court of Appeals even HAVE jurisdiction regarding AZ?

According to this article, a lawyer, based on direct reading of constitution, says that ANY lawsuit involving the state as a party must be filed with the SUPREME COURT, not Court of Appeals.

"Article III, Sec. 2, clause 2 [of US Constitution] says:

 

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction."

How can Eric Holder, the Attorney General of the US of A, not know this part of the US Constitution?


http://www.examiner.com/x-37620-Conservative-Examiner~y2010m7d31-Explosive-new-evidence-shows-ruling-of-AZ-judge-illegal

Arizona's "Safe Streets" act, i.e. SB1070 -- safe from court challenges

Do you know why Arizon's SB1070 (and its revisions) are safe from any court challenges from ACLU and other organizations?

In order to challenge a law in court, one must demonstrate that the law in question is in conflict with an existing law, and the conflict must be resolved by the court, who then must rule. The resolution can be a full overturn, or explain that there is no conflict, or anything in between. 

The primary approach expected to challenge SB1070 is the preemption argument. American Civil Liberties Union (ACLU) and some constitution law scholars claim that Arizona law is preempted by Federal immigration laws. The US Constitution specified that only Federal government may enact and enforce immigration laws, not the states. Thus, Arizona law is preempted by the Federal laws on immigration.

The secondary approach is the rights argument, specifically 14th Amendment, in that States shall pass no law abridging any citizen or lawful resident of their Federally guaranteed rights. Their argument would be that the normal citizen or legal resident rights are violated by SB1070, and therefore SB1070 must be repealed.

http://hubpages.com/hub/Why-Court-Challenges-to-Arizona-SB1070-will-fail