To the editor,
Amid a series of recent controversial judicial decisions regarding the pledge of allegiance, gay rights and Terri Schiavo's life, opponents of various judicial rulings have branded members of the American judiciary with the new scarlet letter of "A," not for adulterer but "activist." Today, the independence of the judiciary, along with the principle of separation of powers and checks and balances that have endured Western political thought for centuries, is under assault.
Opponents deride "activist" judges for "legislating from the bench," making laws that would otherwise not have been enacted due to weak public support. However, President Bush prides himself on his "bold leadership" and willingness to ignore the poll numbers to make the "tough decisions." Analogously, judges must sometimes make influential rulings that happen to diverge from popular opinion while interpreting the law.
While President Eisenhower personally disagreed with the 1954 Brown v. Board of Education decision, as the Chief Executive, he enforced the decision of the Court, respecting the separation of powers in government. Vocal opponents of school desegregation denounced the Court's "unwarranted decision" and demanded the impeachment of Chief Justice Earl Warren. In the end, Warren was vindicated.
Critics cite "judicial activism" for the recent momentum of controversial pro-gay rights measures in the nation. However, contrary to popular belief, "liberal" San Francisco Mayor Gavin Newsom's marrying of gay couples in early 2004 or the "liberal" Massachusetts Supreme Court's permitting of gay marriage did not spark the newfound public debate over gay rights. Rather, the issue passionately reemerged after the U.S. Supreme Court struck down the constitutionality of Texas' anti-sodomy laws in November 2003. Groups condemned the Court for its decision and "judicial activism."
Is the U.S. Supreme Court filled with "judicial activists?" Isn't this is the same Court that effectively decided the result of a presidential election with Bush v. Gore for the first time in our nation's history? Were the Justices "activists" with Bush v. Gore or simply making sound legal decisions? Many individuals simply brand judges as "activist" when such judges make rulings that the individuals personally oppose.
While the American judiciary system is not perfect, federalism allows for a safety net against unfounded judicial decisions and addresses concerns of judicial accountability. The U.S. Supreme Court justly reinstituted "Under God" in the Pledge of Allegiance after the Ninth U.S. Circuit Court of Appeals controversially removed the phrase in 2002.
Members of Congress, such as Senator Frist and Representative DeLay, denounced the "activist" judges for "killing" Terri Schiavo as further examples of extreme left-wing judges advancing their personal political agenda. Frist and DeLay's condemnation of Florida Judge George Greer painted him as an "out of control" liberal that wears Phish shirts and Birkenstocks beneath his black judge's robe. In reality, along with several of the judges who made the decisions that led to Schiavo's death, Greer is a longtime Republican and conservative Christian who demonstrated that the law is above politics.
When the executive and legislative branches have complex political constituencies to satisfy, as disturbingly evident in the Schiavo case, an independent judiciary is essential to ensure that law and reason, not personal opinion and emotion, are the guideposts in deciding judicial disputes. DeLay's declaring that "the time will come for the men responsible for [Schiavo's death] to answer for their behavior" embodies the current anti-judge movement that threatens the independence of the judiciary. Yet, as a responsible and independent judge, regardless of his personal background, Greer simply evaluated the law that allowed him to "clearly and convincingly" determine the wishes of Schiavo. Greer should be commended for his judgeship, not threatened.
If Greer is guilty of "judicial activism," then Congress must be equally scolded for "legislative activism," by overstepping its bounds in becoming involved in the Schiavo case.
While many emotionally charged Americans were appalled by the U.S. Supreme Court's decision in Bush v. Gore, Americans respect the institution of the judiciary and the decision of the Court. Similarly, Americans respected our Presidential electoral process, even though nearly half of Americans are always displeased with the outcome. Even the most vehement "anybody-but-Bush" voters last November did not take to the streets with arms after President Bush's re-election.
Once cases, such as Bush v. Gore and the Schiavo matter, exhaust the appropriate local and federal courts, Americans accept the result, despite their personal misgivings, and move on. Our faith in our system is what makes America work.
