What does “judicial activism” mean?

How is it that judges become “activists”? Don’t they have to follow the law as set down by higher courts?

Let’s explore the legal process for a little while, and see if we can identify how judges make their rulings, and thereby pinpoint the ways in which judges might become what some would call “activists”.

By the way, your friendly Author goes by the goofy nickname The Radical Moderate, but he still should have a measure of credibility when writing about legal issues, since his true identity is Attorney Tim Willoughby, proprietor of Tim’s Missouri Employment Law Info Site. But then again, who believes anything lawyers say? (I don’t either!)

Here are a few hugely important concepts in the law, and how a judge’s decision might be called “Activist” depending on how the judge responded to these concepts in court:

In any legal setting, when the FACTS are against you, argue the LAW.

In other words, when the facts make your client look absolutely horrible and any judge or jury would rule against your client whenever possible, argue that the LAW is SO CLEAR that your client must win despite the evil facts.

We see this argument made all the time in search and seizure cases, where the police may have performed a questionable or even illegal search but FOUND SOMETHING EVIL. Maybe an illegal search resulted in the seizure of conclusive evidence that the defendant commited murder.

Defense lawyers argue that the illegal search means the evidence must be thrown out, even though this means an evil person will go free. In other words, the defense lawyer is “Arguing the Law.”

An “activist” judge will find a plausible legal argument to show that the seizure was NOT REALLY ILLEGAL to permit the evidence to be introduced. However, reasonable minds can usually disagree on whether the search was too much of a stretch or whether the search was just a logical extension of prior court decisions.

The loser will scream judicial activism no matter what.

In the realm of criminal law judicial activism has abounded. The great majority of the activism has resulted in CONVICTION, not acquittal. Judges don’t like to release criminals any more than you would like to release criminals. So judges feel pressure to make lots of exceptions in the law, to let evidence in that might otherwise be excluded.

Defense lawyers have a maxim: “If the prosecutor really needs the evidence, the judge’s gonna find a way to let it in.”

That’s why we have so little privacy these days, and the police have such overwhelming authority to search just about anyone anytime anywhere.

You might not notice the effect of the long history of pro-police judicial activism, until there comes the day when the government turns its attention to YOU. Then you will go see a lawyer, and you will be dismayed to find that there probably won’t be much you can do to stop the process.

But the judicial activism in favor of police power is good, when the power results in catching real criminals and keeping us safe. The cost is that we all suffer less privacy and less protection against tyranny.

When the LAW is against you, argue the FACTS.

In other words, if your facts are SO COMPELLING, but the LAW says you have no remedy, you ask for an EXCEPTION to be carved out.

This argument occurred in the recent medical marijuana case at the US Supreme Court. The Court decided that no exception to its “Commerce Clause” decisions would be made for privately grown medical marijuana, despite the compelling FACTS.

An activist judge may CHANGE THE LAW to carve out an exception for the compelling facts. If the general public agrees with the exception, then few people will scream “judicial activism”.

But usually, the loser will scream judicial activism no matter what.

Wrongful termination recognized - a good example where the facts caused an exception to be made

Here’s a GOOD example: In Boyle v. Vista Eyewear, Inc., 700 SW2d 859 (Mo. App. WD 1985), a Missouri court recognized the new claim of “public policy discharge” as an exception to the “employment at will rule”. That’s a form of legally wrongful termination, folks. In Boyle, the plaintiff was ordered to violate the law (by falsifying safety data to the Federal Government) and plaintiff refused and was fired.

The court determined that it’s just plain “against public policy” to permit employers to fire people who refuse to break an important law.

Would YOU agree with the Boyle decision if YOU were a judge?

Boyle is an “activist”decision. The case made new law, recognizing a new cause of action. But the principles underlying the case are not, or at least should not be, too controversial. For some reason, the Missouri legislature had never seen fit to write a law prohibiting employers from requiring their employees to perform illegal acts. So finally the court stepped in, on behalf of the People of Missouri. Good for the court, and for the people of Missouri.

Another good example: Using trespass law in the old days to prosecute polluters

Here’s another example: In the days prior to environmental laws, landowners sued polluters using the law of “trespass”. It’s hard to argue that the facts would be compelling, when dangerous chemicals were pooling on your land from a nearby factory. An “activist judge” would permit a “trespass” case to go to trial, and an “activist” court of appeals would affirm the decision.

Most often, reasonable minds can disagree on whether an exception was proper in the case at hand. But the loser will scream activism.

Return to criminal law example - Prosecutor argues the Facts compel a new exception

Let’s return for a moment to our criminal law search and seizure example, where an illegal search occurred but something evil was found. We saw that the defense lawyer “argued the law” in trying to exclude the evil evidence.

We now see that the prosecutor is “arguing the facts”. The prosecutor knows that the law is on the defendant’s side and that the search was probably illegal. But the facts are compelling (illegally seized evidence that proves the defendant murdered someone).

And so the prosecutor argues that a new exception should be carved out for this type of case, so that the evil evidence can be admitted at trial.

When BOTH the facts AND the law are against you, argue POLICY.

These cases provide an opportunity for truly high profile judicial activism.

In these Policy cases, no good law allows a remedy for the plaintiff, and the facts of the case might suggest that there is no recognized legal claim to be made under any set of laws. And yet, someone is trying to sue.

In one type of case, the plaintiff essentially begs the court to recognize a novel cause of action, on the theory that there should exists some method of redressing a perceived harm for the public good, or something like that. This is called a “pure policy argument”, to overly simplify. These cases fail all the time, and you never hear about it.

A judge has the power to decide to hear a novel case, if you can convince the judge to accept your theory of the case.

But most of these pure policy types of cases have unusual facts, or the facts have not ever before been thought of as leading to any legal rights. These kinds of cases differ from the other type of cases we’ve looked at in this article, where the facts might be “compelling” but the law does not provide a lot of support (ex: The Boyle v. Vista Eyewear discussion elswhere in this article).

Here’s one example of a pure policy argument, that is quite weak: An obese person sues a fast food restaurant for selling high-fat foods, on the claim that the tasty high-fat fast food is so irresistibly delicious that the product is dangerous to society (this is NOT a consumer fraud type of case, where someone sues a fast food company claiming that it has LIED about the nutrition content of its products).

Such a case has no realistic hope. First, the facts are not compelling. No wrong has been done to anyone that a reasonable person would recognize. Second, no law would seem to apply by any stretch of the imagination. (What, we’re gonna sue ice cream companies next?)

These kinds of nutty-sounding pure policy cases are almost always dismissed quickly by the trial courts. If a trial court allows them to go to trial, the court of appeals reverses, in almost all cases.

But the media likes the wierd. And so the media will do a story on the filing of a wierd case. The mere filing of a lawsusit means almost NOTHING. Anyone can “FILE” anything.

Then, a few months later, the media will NOT report that the judge threw out the case as frivolous. And so the public is left with the false impression that “Activist Courts” are permitting all kinds of nutty cases.

In another kind of pure policy case, the Civil Rights-type of case, a lot of controversy follows suit. For example, the United States Constitution, and those of many states, contains a civil rights-related provision called the “Equal Protection Clause”. One of our civil rights as citizens is that we shall not be denied the Equal Protection of the Law.

What the hell does the “Equal Protection of the Law” mean?

Well, courts have been asked repeatedly to define “Equal Protection”-type language. We “ask” courts to define things by Filing Lawsuits.

In the lawsuit, someone argues that they are being denied the “Equal Protection of the Law” based on a trait that, they argue, is not legitimate. For just one example, perhaps gay people are seeking to receive similar rights as non-gay people.

In some states, the court system might decide that gay people and non-gay people must be provided similar rights under the law. In other states, gay people might be rejected when they ask courts for such “equal protection”. This type of distinction among the states is consistent with the “states rights” philosophy, that we are a union of 50 sovereign nations.

And so, the court decisions about Equal Protection of the Law might be a tad bit more controversial than your average court case.

Before we assume that judges of a particular political stripe are responsible for the approval or denial of civil rights, let’s keep in mind that the notorious Roe v. Wade Supreme Court abortion case was decided by a vote of 7-2, with Republican appointees making up most of the 7, and with a Democratic appointee (Byron White) among the 2 in the dissent.

And in the recent 2005 controversy surrounding Terry Schiavo in Florida, the judge who was at the center of the conflict (because of his decisions) was a Republican.

The distinction between Trial Courts and Appellate Courts - Quick Overview

Trial courts determine what the “FACTS” of the case are, and whether those FACTS are sufficient to support a judgment one way or the other.

Appellate courts determine whether the trial court properly applied the various LAWS and LEGAL PRINCIPLES in making the decisions relevent to the case.

In the Trial Court the facts are on trial. In the Appellate Court, the law is on trial.

Here’s what a Trial Court actually does:

The trial court makes legal decisions about what FACTS will be permitted into evidence.

The trial court makes legal decisions about whether, overall, there exists enough of a legitimate legal dispute to permit the case to go to trial.

The trial court determines, during the case, before trial, how much “Discovery” of new facts to permit.

The trial court gets to “frame the issues” for the jury. The trial court determines exactly what questions to ask the jury (”jury instructions”).

The trial court gets to “Second Guess” the jury’s result, deciding whether the jury’s decisions about liability and damages are adequately justified by the evidence legitimately presented at the trial.

Here’s what an Appellate Court (Court of Appeals) actually does:

In the trial court, the FACTS are on trial. But in the Court of Appeals, the LAW is on trial.

The appeals court takes the FACTS as determined in the trial court. The appeals court DOES NOT find NEW FACTS.

Sometimes, the appeals court rejects a certain important fact as determined in the trial court, finding that the trial court made a legal error in permitting the fact into evidence. IF the fact is sufficiently important to the trial outcome, a new trial may be ordered.

The appeals court decides whether the legal decisions made by the trial court were legitimate in accordance with the long-established doctrines of the common law.

The appeals court decides whether the trial court properly applied the law governing the interpretation of statutes, considering the opinions of other appellate courts that interpretted those same statutes.

The appeals court decides whether the FACTS admitted into evidence were properly admitted under the rules of evidence that govern all cases.

The appeals court decides whether the DISCRETIONARY rulings of the trial court were an ABUSE OF DISCRETION, considering all the rules of evidence and procedure.

In the end, the appeals court decides whether the parties received their shot at justice, regardless of the outcome in the trial court, all things considered.

If the trial court issued any controversial rulings, such as rulings that permitted a new exception to a law or legal doctrine, the court of appeals gets to second guess the trial court.

So, for an episode of “judicial activism” to become the new law of the land, the appeals court must Agree with the trial court.

More about the various levels of Courts of Appeal

At the first step in the Appeals process, the FULL appeals court does not usually get involved. Instead, a “panel” of about 3 judges first hears the appeal.

The losing party can ask the full court of appeals to re-hear the case and make a new decision. When the loser asks the full court to re-hear the decision, the court members vote to determine whether the outcome might change upon re-hearing. If the full court is uninterested in hearing the case, then the “panel decision” becomes the official decision of the court of appeals in that case.

So, for an instance of “trial court judicial activism” to be validated, the decision has to, in essence, pass muster with a small “panel” of court of appeals judges, and then be reviewed and approved of by the full court of appeals.

The more important the case, the more likely that the full court of appeals will end up re-hearing the case, no matter how the panel voted.

And finally, the next level of appeal is to the State Supreme Court in matter that do not touch on Federal law or US Constitutional law. If Federal or Constitutional law is involved, then the US Supreme Court may be the next (and last) stop on the appeal path.

And so you can see that it’s a very long process for an example of “judicial activism” to become the new law of the land. At any point in the process, an appellate court could reverse the activism and send the case back to the trial court for a new trial.

If an example of alleged activism makes it all the way to the State Supreme Court or the US Supreme Court, and gets approved of, then a lot of very smart judges have agreed with the decision, and have fully explained their thinking in written opinions.

Fixing an unacceptable example of judicial activism that has already gone through the Appeals process

The court system is NOT the end of the road for the alleged activism. We the people, through our votes and through our elected legislatures, can overturn any type of judicial activism that we want to overturn.

If the alleged activism is regarding the meaning of a statute, the legislature could overturn the decision by passing a new statute.

If the alleged activism is regarding a constitutional provision, we could overturn the activism by amending the Constitution. Each State will have its own procedures for amending its on constitution. It’s much harder to amend the US Constitution, but it’s certainly possible if a truly unacceptable example of judicial activism occurred.

But generally the courts are very conservative, and examples of highly controversial radical court activism are fairly rare, despite what the radio and tv spinwits preach to us.

Conclusion:

Keep in mind the above process, when people accuse judges of “activism.” Now you will know a little bit more about where in the legal process the “activism” might have occurred, and maybe understand a little more about “why” the judge might have issued a controversial ruling.

For example, was the judge moved by the Compelling Facts (created an exception in the law) , the Clear Law (rejected the compelling facts), or purely by the Strong Public Policy Considerations (decided that SOMETHING had to be doable to fix a perceived wrong, and allowed a novel kind of case to live on).

And you will know that the Court of Appeals and Supreme Court will have a shot at second guessing the actions of the trial judge.

You know, sometimes judges just get it wrong. They are so moved by the facts of a case that they make decisions that are not well supported. The judge may not have any intent to make an “activist decision”. That’s why we have appeals courts - to provide a check and balance.