The issue of activist judges is the question du week for the AJC's Woman to Woman column, always a good source of material and ire for me because Shaunti Feldhahn never fails to be an absolute freaking putz. She goes through her usual thrash of changing values, gay marriage, abortion, blah blah blah, Terri Schiavo blah blah. But she also makes two statements that, while as asinine as we've come to expect from ol' Shaunti, are also significant:
We are in trouble as soon as a judge’s rulings become peppered with references to value judgments or shifting social mores. In our balance of powers world, those considerations are the province of the legislature and the chief executive.
and
We must find better ways to hold activist judges accountable. Although judges must be protected from political considerations, we must be willing to consider the ultra-rare tool of impeachment for egregious cases.
One phrase just jumped out and smacked me: our balance of powers world. We do have a balance of powers. We have checks and balances. And that, Shaunti dear, is exactly why your despise-ed "activist judges" are not only acceptable in but crucial to the preservation of our rights as Americans.
The idea behind a three-branch government is basically the idea behind Paper-Scissors-Rock: everyone can trump someone else, and everyone can be trumped. Everyone has their own job, and, as dictated by the Constitution (generally accepted as the official rulebook for the game) no one's job can completely dominate the government. Unless, that is, you've got a Republican majority in Congress, a sock puppet in the White House, a prostitute in the press gaggle and news media that couldn't care less. Not that that's what we have now, of course; we're speaking rhetorically.
But let's look at that rhetorical country I just laid out. We'll call it the United States of Pamerica (or the USP). Let's say that there are two pecan groves side-by-side in one of those states, run by Mr. Red and Mr. Blue. Now, Mr. Blue happens to worship shrimp, and he has a religious gathering every Wednesday night where he and a few of his close shrimp-worshipping friends get together and have a quiet, unobtrusive celebration to the glory of shrimp. Mr. Red doesn't dislike shrimp, but he's not a fan of shrimp worship, and he's starting to get news that a few potential customers have shied away from his pecan grove for fear of divine retribution, what with all of this shrimp worship going on right in the next grove.
So Mr. Red goes to the capital and talks to the state lege about passing a bill to outlaw shrimp worship within a hundred feet of an agricultural establishment. And of course Mr. Red gets laughed out of the building, because his proposition is ridiculous to everyone except for Representative Fartblossom (D-Lawrenceville), who's 90 years old and tries to pass a bill every year requiring mandatory dental exams for sheep. Mr. Red doesn't like being laughed at, so he takes his favorite senator in hand and heads up to Washington and demands - demands - that somebody do something about this damn shrimp worshipper.
Officially, Congress can't touch it.
This isn't a freedom of religion issue, and it isn't an interstate commerce issue, it's an agriculture issue, and Congress can't directly regulate agriculture. It could also be considered a local zoning issue, but Congress can't regulate that, either. And no matter how wadded up Mr. Red's panties happen to be, he's not going to get any relief from Congress because they can't act on his problem.
Except that this is the United States of Pamerica that we're talking about. Mr. Red's senator, Senator Yahtzee, who's up for reelection this year, takes it upon himself to protect this poor, poor pecan farmer from the horrors of shrimp worship in his own neighborhood. He says that Mr. Red's rights to freedom of religion are being violated by his proximity to shrimp worshippers, and that his revenue is threatened by them, and by God (and not a shrimp god, either) he's going to pass a law outlawing shrimp worship within one hundred feet - hell, let's make that yards - of Mr. Red's pecan grove. And because this is a rhetorical country, completely unrelated to our own perfectly rational and reasonable USA, let's say that law passes to streamers and confetti and popping champagne corks. The President himself flies out from his ranch in Brawford to sign the bill into law and share in a very delicious shrimp cocktail.
"Not so fast," says the Supreme Court. Thank God.
See, pretty much the entirety of the Supreme Court's job is to say "not so fast." If a law or a court ruling is unconstitutional, they say "not so fast," and if a law or ruling is constitutional but is being protested, they say "not so fast" to the ones protesting it. And they don't say, "not so fast, I think this law sucks," they say, "not so fast, this law is blatantly unconstitutional, and I'm going to list every article violated and explain why." In this case, it's "not so fast, you're trying to make a law on an issue that's not under the authority of Congress."
Congress, of course, is up in arms. The Supreme Court is filled with activist judges. They hate Mr. Red for being straight and white and Christian, and they're going to punish him by taking away his land and giving it to this heathen shrimp worshipper. The judiciary loves shrimp worshippers, the nation cries! Down with activist judges, and down with shrimp worship! These judges need to be elected, so that they'll serve the will of the people and not their own personal seafood preferences!
"Not so fast," says the Constitution.
The President is elected. By the people. The people get together and vote and, if they're lucky, the guy with the most votes is president, and he gets to appoint people (like judges) and veto bills and command the military. Congress is elected. By the people. The people get together (in their states, this time) and vote and, with any luck, the guys with the most votes are Congressmen/women, and they get to pass federal laws, impeach the president, and even overturn vetoes.
The judicial branch is appointed (by the President, people) and approved (by Congress). They've got just as much partisan politics behind them as any other branch. But what they don't have is election campaigns, which means that they don't have to pander to the will of the majority, which means that they do get to rule in favor of the minority whenever the Constitution gives them reason to do so. In a situation like the USP, with one party controlling two branches, the judiciary is the only branch really likely to speak for the minority. They can say, "Hey, the Constitution says you can't make that law" or even "Hey, the Constitution says he can worship shrimp wherever he likes," and they don't have to worry about backlash from Pamericans Against Consecrated Seafood.
Shaunti, I know that shrimp worship wigs you out. I know that you want poor Mr. Red to not live in fear of the peaceful shrimp worshippers next door. But that doesn't meant that Mr. Blue can't worship shrimp all he wants, within the boundaries of the Constitution. And when the ever-growing congregation of shrimp worshippers becomes a majority in the US, you'll be grateful for an activist judiciary to protect your right to worship Belial at your pecan grove.
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