Activist Judges

A fascinating look at what goes into a Supreme Court decision, from Justice Stevens.

In one, the eminent domain case that became the term’s most controversial decision, he said that his majority opinion that upheld the government’s “taking” of private homes for a commercial development in New London, Conn., brought about a result “entirely divorced from my judgment concerning the wisdom of the program” that was under constitutional attack.

His own view, Justice Stevens told the Clark County Bar Association, was that “the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials.” But he said that the planned development fit the definition of “public use” that, in his view, the Constitution permitted for the exercise of eminent domain.

Justice Stevens said he also regretted having to rule in favor of the federal government’s ability to enforce its narcotics laws and thus trump California’s medical marijuana initiative. “I have no hesitation in telling you that I agree with the policy choice made by the millions of California voters,” he said. But given the broader stakes for the power of Congress to regulate commerce, he added, “our duty to uphold the application of the federal statute was pellucidly clear.”

First of all, what does ‘pellucidly clear’ mean? I can’t be the only one who has never heard the word in my entire life. Anyhow, it shows that judges are by and large the exact opposite of activist. An activist judge would do what they thought is right instead of doing what the law compelled them to do.

This brings to mind the famous activist judges of Massachusetts, who supposedly legalized gay marriage. This is simply untrue. “We declare that barring an individual from the protections, benefits and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts constitution,” Chief Justice Margaret Marshall wrote in the 4-3 decision. I don’t see anything in there about legalizing about gay marriage, it’s about giving the same right to those who do. And it’s based from the text of the constitution, not made up out of thin air.

As many have documented, in today’s current environment, an activist judge is one you disagree with.

One thought on “Activist Judges”

  1. Perhaps Justice Stevens is not an “activist,” but a little activism would have been fine with me on this one. Emminent Domaine is supposed to be for absolutely necessary things that serve the public, like a hospital or military base, not some guy who can make more money with a Bertucci’s than you can with your house.

    As someone who has more than a little bit of libertarian in him, I think eminent domain sucks ass, and the first houses to go should be the ones belonging to the five justices who voted in favor of it. This goes against everything our country is supposed to stand for, it’s the gov’t having the power to take your house and give it to someone else becasue they can make more money. It makes me nearly want to puke, and it also hurts the Democrats, because anything having to do with expanding the reach of gov’t will surely turn up in ’06 and ’08 attack ads against them. I consider this the worst S.C. decision of my lifetime.

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