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Posts Tagged ‘perry v. schwarzenegger

Judicial Review v. “Judicial Activism”

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by Todd Hatton

In order to fully consider an issue today, one needs to consider the issue’s provenance.  It’s like waking up one morning and finding an elephant in your flower bed.  Once you’ve realized that a five-and-a-half ton pachyderm is nosing around your begonias, and you’ve given animal control a call, you probably need to start thinking about how it got there.

Alex Nabaum

In that light, I’d like to revisit something you may have heard on The Front Page last week, a piece disparaging “judicial activism.”

The piece objects to this “judicial activism” in three cases: Perry v. Schwarzenegger, Gill v. Office of Personnel Management, and Massachusetts v. United States Department of Health and Human Services.  In Perry, Judge Vaughn Walker is said to have trampled the rights of 7 million Californians who voted in favor of Proposition 8, the measure defining marriage as between one man and one woman that once passed, became Section 7.5 of the Declaration of Rights and part of California’s constitution.

In Gill and Massachusetts, Federal District Judge Joe Tauro struck down 1997’s Defense of Marriage Act, overriding the affirmative votes of 427 congressmen and Bill Clinton’s signature.  This is the evidence that “judicial activism” is subverting the democratic process.

Leaving aside that Judge Tauro is President Nixon’s remaining appointee, and the judge in Perry, Vaughn Walker, was appointed to the bench by the first President, and setting aside that the seven million voters who approved Prop 8 outvoted the opposition by about six-hundred thousand votes, and are a minority of the 15.2 million registered and 23.4 million eligible California voters, we still have the charge that these two judges acted without restraint.  They exceeded their mandate, in effect legislating from the bench.  Or so it would seem.

I once heard that judicial activism is what you call judicial review when you don’t like the verdict.  “And what,” you ask, “is ‘judicial review’?” Read the rest of this entry »