Judicial Activism

Judicial activism is known to occur when a “judge rules contrary to established precedent” (Conservapedia, 2007). Political scholars use the term to describe the disposition of judges to take account of outcomes, public policy issues, as well as attitudinal preferences while interpreting the applicable law in existence. Judicial activism is considered the antonym of judicial restraint. What is more, the term is often used pejoratively in the description of legal judgments that are based on a specific agenda that is thought to be endorsed by a judge (Judicial Activism, 2007).

Today, judicial activism has a variety of meanings, simply because supposed activism with regards to legal judgments could occur in a variety of ways (Sowell, 1989). The most debated cases of judicial activism occur when courts of law given the job of exercising judicial review strike down those statutes which they think are unconstitutional. Given that there are a variety of interpretations of the Constitution that range from strict constructionist views to the interpretations of the living constitution, most controversial judgments that strike down a statute are labeled by the critics as judicial activism (Judicial Activism).

Critics of judicial decisions abound, both in the government and outside of it. Thus, Senators Orrin Hatch of Utah and Sam Brownback of Kansas, two Republican members of the Senate Judiciary Committee, claim: “There's an old saying in the legal community: ‘Bad facts make bad law. ’  Activist judges continue to prove that bad judges make bad law”.

The Senators mention a decision made on 20 January 2005 to explain that extreme judicial activism is also possible, and can be quite harmful as well as ridiculous seeing as the judges of the nation are responsible for bad laws in such cases. The decision in question concerned the United States versus Extreme Associates case which revealed how judicial activism can truly hurt the interests of society. The Senators describe the case thus: The Justice Department had brought a 10-count indictment against a company called Extreme Associates, which produces films that, according to one report, "even porn veterans find disturbing. " 

Extreme co-owner Janet Romano, whose "professional" name is Lizzy Borden, admitted in a May 2001 interview that women in their films, receive real physical beatings. Her husband, Robert Zicari, boasted that the films — which depict rape, torture, and murder — represent "the depths of human depravity" and proudly admitted that the ones involved in the indictment meet the legal definition of obscenity. When the people at Extreme sent these films through the mail, they violated federal anti- obscenity statutes.

Yet what should have been a slam-dunk conviction turned into a ruling that these statutes are unconstitutional. When a judge avoids ruling on what is in the Constitution by ruling on something that isn't, however, you know something political is afoot. U. S. District Judge Gary Lancaster of Western Pennsylvania, said that the indictment against Extreme violated not the First Amendment's right to free speech, but an unwritten constitutional "right to sexual privacy, which encompasses a right to possess and view sexually explicit material in the privacy of one's own home. " 

He could only come to this bizarre conclusion by stitching together bits and pieces from inapplicable precedents (and making a few things up altogether) to form a Frankenstein's monster of judicial activism. It's no wonder Judge Lancaster wanted to avoid the First Amendment, because the Supreme Court has repeatedly held that there exists no First Amendment right to do what these Extreme defendants did, namely, produce and distribute obscenity.

The Supreme Court has also held, even more specifically, that the right to consume obscenity privately — established in a 1969 case — does not create a right to distribute. That would seem to place in a real bind those, like the Extreme defendants, who admit to producing and distributing obscene material. Not to worry, said Judge Lancaster, since this is really not about the First Amendment at all. Judge Lancaster took a slice from that 1969 decision (Stanley v. Georgia)

Legalizing private consumption of obscenity and stitched it together with the Supreme Court's 2003 decision protecting a right to private consensual sexual activity (Lawrence v. Texas). He concluded that this case was not about freedom of speech but about a fundamental constitutional right to sexual activity. The 1969 decision on which he so heavily relies, however, was decided squarely and explicitly on the First Amendment he wants to avoid. Finally, Judge Lancaster insists that the Supreme Court's 2003 decision creating a right to same-sex sodomy eliminated the argument that statutes may be justified by what he called "advancement of a moral code. " 

As Judge Lancaster himself describes it, however, that conclusion was not a holding of the court at all, but an observation by the dissenting Justices who, he assures us, "came to this conclusion only after reflection"  (Orrin and Brownback, 2005). As far as activism in the above example is concerned, it may be that politics allows for obscenity when political leaders believe that pornography is actually good for economic growth because it sells.

Still, people with a strict moral code like to believe that the constitution and all laws of the land are absolutely clear cut and therefore impossible to interpret differently. While judicial activism may be based on economic interests; attitudinal preferences or prejudices may also take charge of the intellects of the judges as they make decisions. Sometimes these decisions may concern the lives and deaths of citizens. The following example will reveal judicial activism in practice and based on prejudice that has the capacity to harm countless lives.