Yesterday’s decision by the Ninth Circuit striking down California’s Proposition 8, which amended the California constitution to define marriage as a legal institution involving one man and one woman, has reignited the public debate about judicial activism. When courts weigh in on such controversial and political topics, it is necessary to stop to consider a larger question: What is the proper role of the courts? Explaining the appropriate interplay between the branches of government and the proper methods of interpretation that judges should employ when determining whether a law is …
In a statement that is as unseemly as the example of judicial activism that gave rise to their removal from office, three former Iowa Supreme Court justices are blaming “out-of-state interests” for their loss on Election Day. The evidence seems clear that the three judges who were not retained by Iowa voters lost their offices because of the unsupportable ruling they joined in April 2009 that invented a state constitutional right to same-sex marriage. Of the 74 Iowa judges statewide who were subject to retention votes last week, only Marsha …
As we head into Election Day tomorrow, we should note that there were two decisions last week in federal courts of appeal that directly impact on the right to a secure and fair election, one good and one bad. In Johnson v. Tennessee, a three-judge panel of the U.S. Sixth Circuit Court of Appeals upheld the right of the State of Tennessee to condition restoration of the voting rights of convicted felons on payment of restitution and child support obligations. The decision was two to one and it will probably …
Both sides of the same-sex marriage debate reacted strongly to Judge Vaughn Walker’s decision in Perry v. Schwarzenegger to overturn Prop 8 in California. What has been most surprising is the developing consensus from prominent legal experts and analysts, including many who support the redefinition of marriage, who find Judge Walker’s opinion unpersuasive. Some argue that Walker failed to tie his legal rationale back to the Constitution’s text. Others were unimpressed with Judge Walker’s “findings of fact” that made sweeping generalizations and predictions about the social dimensions of his ruling. …
Judicial tyranny is alive and well in the United States, and as a result the debate over the future of marriage may soon be front and center once again in the national news. Two major federal court rulings, one just released and another imminent, pose separate challenges to marriage. First, on July 8, a federal judge in Massachusetts overruled 427 Members of Congress and struck down a key part of the federal Defense of Marriage Act (DOMA). Second, most observers consider it likely that another federal judge, this one in …
In last week’s hearings to determine whether former Harvard Law School dean Elena Kagan should be a justice of the U.S. Supreme Court, a number of liberal Senators criticized the Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. as the work of “conservative activists.” In Ledbetter, the Court reaffirmed that the 180-day time period – a period that Congress itself established – for bringing a charge of discrimination under Title VII of the Civil Rights Act is triggered when the alleged act of unlawful discrimination takes …
The false alarm concerning the possible resignation of Chief Justice John Roberts, Jr. sent shockwaves throughout the blogosphere and media outlets yesterday afternoon. Those of us who respect the Chief’s service to our country and fidelity to the Constitution were relieved when the rumors were false. But this fire drill served as a reminder of the importance of the judiciary in our society—an importance bloated by the Supreme Court’s usurpation of the proper policymaking functions of the other branches of the national government and of the states. The Supreme Court …
Sometimes judicial activism isn’t about who wins the case. It may be that the Supreme Court got it right today when it ruled that school officials violated the constitutional rights of 13-year-old Savana Redding when they ordered her to shake out her underwear to see if she was hiding more of the prescription pain pills found on a schoolmate. But one thing it didn’t do is provide any kind of guidance for school officials who now face the prospect of liability for violating this new rule… whatever it is. This …
Today the California Supreme Court rejected requests by same-sex marriage advocates to strike down Proposition 8, the ballot measure that democratically superseded an earlier decision by the California Supreme Court that redefined marriage to include same-sex unions in that state. In May of 2008, the California Supreme Court interpreted the California Constitution to require that same-sex couples be allowed to obtain civil marriage licenses in California. Under a domestic partnership scheme, California law already provided same-sex couples almost all the state law benefits associated with civil marriage, but the California …
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