Category Archives: Judicial Activism

DOMA on its way to review?

District Judge Jeffrey S. White

Is a case in California setting up DOMA for overturn?

A federal judge in California has ruled that a federal appeals judge has no power to order the U.S. government to provide health benefits to the same-sex spouse of a court employee, but went on to invite a constitutional challenge to the law that mandates a denial of such benefits — the federal Defense of Marriage Act.   The judge also indicated that the challenge probably would succeed.

In other words, the appellant, a court employee seeking benefits for her partner, has the wrong procedural posture. She gets until April 15 to file an amended complaint for review of the constitutional grounds of the action preventing the benefits.

With Lambda Legal arguing the case on her behalf and praising the judges dicta that she has a “clear right to relief,” I have no doubt that the case will be amended and refiled.

Stay tuned and remember: if you can’t win at the voting booth, you might be able to win in court, instead.

Rainbow flag flapping in the wind with blue sk...

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(h/t SCOTUSblog)



Prop 8 Advocates in Court Today: “Let us stand in for elected officials.”

Election results by county.

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With California elected officials opting out of defending Proposition 8, the advocates for the successful ballot measure went to court today to argue that they should be allowed to defend it in their place.

Their brief, found here, argues that the voter initiative process depends on a legal defense in court. Lyle Denniston at SCOTUSblog summarized the arguments:

The proponents contended that the very integrity of the voter initiative process in California — a prized part of the state’s lawmaking process — depends upon having someone available to mount a defense of a measure against constitutional attack if state officials don’t do so.  Citing a string of California state court rulings, the brief asserted that their interest in protecting Proposition 8 is already clearly established.

But what injury will they face if the measure is not defended?

The Proposition 8 brief sought to anticipate that question of legal injury by contending that, with state officials on the sidelines, the measure’s backers have become “agents of the people” of the state, acting “to preserve the People’s intiaitive power….”

If no one else can take the place of state officials to defend a ballot measure from constitutional attack, the new filing contended, the state’s elected officials will have succeeded in nullifying the measure even though they have no such veto power under the state constitution or state laws.

In short, by choosing not to defend the law–passed by Californians in the Proposition 8 ballot measure–elected officials are de facto overturning the will of the people with a veto they do not hold.

Meanwhile, same-sex marriage advocates have asked the court to lift the stay imposed on the decision striking down Proposition 8 so that they can begin to marry.


Stay tuned.

(h/t SCOTUSblog)

So you don’t like judicial activism? How about “rule by text?”

The United States Supreme Court.

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Don’t like judicial activism? How about jettisoning the judiciary altogether?

Both the political left and right seem to take turns accusing judges, specifically those who hand down opinions opposed to their political proclivities, of judicial activism, or judges reading into the law what just is not there.  Originalists call for judicial interpretations that read legislative texts (including the constitution) exactly as drafters intended. In contrast, others want judicial rulings to account for a “living constitution” that reflects the times and will of the people.

Unfortunately, I doubt any judicial ruling is going to please everyone all the time, let alone even some of the time. When there are winners, there must be losers.

But what if we could dispense with judges all together? What if we could be governed completely by legislative texts? In an interesting paper, Peter Tiersma examines the possibility in a new essay entitled “The Rule of Text: Is it Possible to Govern Using (Only) Statutes?“:

This essay explores whether it is possible to govern solely by means of written text, with little or no interpretive discretion allowed to judges. The rule of text, as we might refer to this concept, appears to be a goal that textualist judges are hoping to achieve. The essay first reviews the attractions of written law, which came into being not long after writing was invented. Yet it was only in the late eighteenth and early nineteenth centuries that rulers like Frederick the Great of Prussia and later the French revolutionaries tried to govern their nations by means of comprehensive codes of law, which judges were forbidden to interpret. Those efforts to implement a pure form of the rule of text largely failed. Next, we consider several U.S. Supreme Court cases that involved interpretive questions. Could the problems have been avoided by more careful drafting? I conclude that mistakes and ambiguities can in principle be prevented at the drafting stage or be solved by means of amendment after they are discovered, but that vagueness is a far more difficult problem. To the extent that the rule of text demands that judges not interpret, they would have to refer statutory uncertainties to the legislature. Both the Prussians and the French had a procedure of this kind, sometimes known as référé legislatif. Asking the legislature to interpret statutes ultimately proved impractical. Although to some extent it violates the separation of powers, there seems to be no feasible alternative to giving judges the authority to resolve the uncertainties that inevitably arise in written text.

via SSRN-The Rule of Text: Is it Possible to Govern Using (Only) Statutes? by Peter Tiersma.

Thoughts? Are you ready to take the plunge in to a “rule by text?”

(h/t Josh Blackman)

Misdiagnosis: Judicial Activism « James Madison Institute

In the wake of the latest in a series of cases on the Affordable Health Care for America Act–Obamacare to its detractors, the Holy Grail of legislation to its defenders–the pejorative of “judicial activism” has been leveled  at Judge Roger Vinson and his ruling striking down the law.

While the White House avoids using the term judicial, they disagree with the ruling.  Attacking the merit of the ruling, the White House appeals to the strength of numbers, saying that“This ruling is well out of the mainstream of judicial opinion.”

Despite the appeal to numbers, the constitutionality of an act of Congress isn’t really dependent on a majority.

In reality, upholding the U.S. Constitution’s limits on governmental authority is a proper exercise of judicial authority. Indeed, the doctrine of judicial review has been recognized ever since the landmark case of Marbury v. Madison in 1803. And Judge Vinson’s ruling is far from an abuse of that authority.

via Misdiagnosis: Judicial Activism « James Madison Institute.

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