What exactly is ‘judicial activism?’

first_imgWhat exactly is ‘judicial activism?’ What exactly is ‘judicial activism?’ Justices worry it is just becoming a catchphrase to describe any decision someone doesn’t agree with Jan Pudlow Senior Editor When Miami lawyer Spencer Tew asked a compelling question, the Discussion with the Justices of the Florida Supreme Court at the Bar’s Annual Meeting became a riveting stream of commentary about attacks on the judiciary and harmful cries of judicial activism during the Schiavo case.Here’s Tew’s question: “Judging from the current events. . . I would like to know the court’s feelings on whether there seems to be increasing hostility and distain for the role of the judiciary in our society, by members of the executive and legislative branches of the federal and state government.”Chief Justice Barbara Pariente gave the nod to Justice Raoul Cantero to tackle the question.“Gee thanks,” Cantero responded with a grin.“Well, you were reaching for the microphone,” Pariente said.“No, I was reaching for the glass of water,” Cantero said, as the audience broke into laughter.“But I can answer the question. I think that obviously you are talking about the Schiavo case. I think that to me the most disturbing thing was the misuse of the term ‘judicial activism,’ which was bantered about after that case.“The problem is when we discuss terms like ‘judicial restraint’ and ‘judicial activism’ — and there are legitimate terms for discussion and there are legitimate arguments for saying there is such a thing as judicial activism, and that it is wrong. But it is not ‘judicial activism’ that they were talking about in the Schiavo case. So when you start melding concepts and broadening judicial activism just to mean any decision you don’t like, then it destroys the process of the intellectual discussion of what is judicial activism,” Cantero continued.“And whatever you can say about the Schiavo case, it was not about judicial activism. Judge Greer’s first decision was based on credibility of witnesses. You can agree with him or disagree about where he stepped on that side of credibility. But it wasn’t an activist decision. Later on, he was affirmed because the appellate courts gave deference to that decision. That clearly was not an example of judicial activism.“When Congress adopted the law that allowed the federal judiciary to revisit the case and the federal district judge said, ‘Well, I don’t believe that there is a substantial likelihood of success on the merits, and therefore I am not going to grant the preliminary injunction,’ that clearly was not an example of judicial activism. To the contrary, it was an example of judicial restraint,” Cantero said.“Then when the 11th Circuit upheld that decision, because it was not an abuse of discretion, that clearly was not an example of judicial activism. To the contrary, it was an example of judicial restraint.“And so, what bothers me about that whole process was that the term ‘judicial activism’ was bastardized so that it runs the risk that further discussions of judicial activism will now be affected by that case and will no longer be at the same level of discourse.”The audience gathered at the popular Q&A event, sponsored by the Appellate Practice Section and the Young Lawyers Division, broke into applause after Cantero’s remarks.Justice Charles Wells was next to address the question, offering a historical perspective and more optimistic take on attacks on the judiciary“It was unfortunate the debate in the U.S. House of Representatives on the evening of March 20, and the editorials of very respected newspapers, and one editorial I saw in the Wall Street Journal, in which it indicated that the Florida court system had served the individuals in that case poorly. Whereas I think that any objective analysis would indicate that the judges that did the heavy lifting — which were trial judges and district courts of appeal judges — did exemplary work.“But I do take heart,” Well said. “Throughout the history of the United States, one side of the political persuasion or the other side is going to take aim at the courts. It was the people that were most interested in government regulation that took shots at the courts in 1920s and 1930s, causing President Franklin Delano Roosevelt to be interested in packing the courts, as that term was used. I want to make it clear that I was not here when that occurred,” Wells said wryly.“I do remember the signs across Florida which said, ‘Impeach Earl Warren.’ To an extent, it comes with the territory. The thing that we have to do, we have to understand and protect the role of the courts. The courts have to be restrained. The courts have got to perform their role, just as the other two branches of government have to be restrained and perform their roles.. . . I am optimistic that this too shall pass.”Because several members of the Supreme Court were unable to attend the Annual Meeting, Pariente’s husband, Fourth District Court of Appeal Judge Fred Hazouri, stepped in to help with the final round of the YLD Moot Court Competition juding and this Conversation with the Court.Introducing him as “my very dear friend and husband,” Pariente said, “I will cede to Judge Hazouri to make some remarks on this, with restraint.”Hazouri said he does not share Wells’ optimism, predicting: “I think it will get worse before it gets better.“I think there is something different going on today than there was before. Many of you were not born during the height of the Warren court. There was a lot of argument against the Warren court, but it seemed to be confined to a particular geographical section of the country,” Hazouri said.“I think that the opportunity to demagogue has become a greater part of our society due to 24-hour news channels and talk radio, and that becomes such a vehicle for politicians and legislators and executive branch individuals to make points. . . to their constituency.“I think it is a dangerous thing that they don’t recognize that they may be doing tremendous damage to the respect the public has for the judiciary. We don’t have a police force. We can’t enforce our orders. We can’t enforce our decisions. They can only be enforced by the will of the people,” Hazouri continued.“The demagoguery, I think it does require the bar and hopefully members of the legislative branch and the executive branch to stand up once and for all. . . and stand up for the courts and the independence of the judiciary.”Even before the Schiavo case, Pariente said, the term “judicial activism” had already been misused.“If you read editorials and are keeping track, it really has been used as a way to say, ‘This is a decision we disagree with. It’s judicial activism.’“And so the honest discourse must go on. I think all of us agree that the underlying merits of the decision should always be the subject of debate and legitimate criticism,” Pariente said.“But, really, the term has been used by anyone and everyone just really to reflect a decision they disagree with. . . . I think what happened especially during the Schiavo case, to have a judge of this state doing his job subjected to death threats is of great concern. To have members of Congress make statements that are akin to threats: ‘You’ll get your payback,’ is really the next level of concern. Whether this is all-out warfare on the judiciary, God forbid!” Pariente said.“We don’t have the Secret Service like the executive branch does,” Pariente said, referring to protecting lives of judges. “So I think there was a rise in the level of discourse during the Schiavo case.”Pariente recalled the recent oral argument on the school voucher case, where hundreds of demonstrators peacefully gathered at the Supreme Court exercising their right to free speech and assembly.Pariente said she takes comfort in remembering there has always been strong emotions on both sides of cases the high court decides throughout history — whether it’s desegretation or minimum wage.But Pariente agreed with her husband when she said: “I think the level of rhetoric has risen. And I am sure that this 24-hour news, or so-called news, is somewhat responsible for that.”After the intriguing glimpse into the justices’ views on their threatened independence, Cantero joked: “Can we get a question that provokes some discussion?” August 1, 2005 Senior Editor Regular Newslast_img