The Dynamics of Judicial Activism

Three essays on judicial activism in the June 26 Opinion section fail to mention the real issue -- the increasing repudiation of the principle of the independence of the judiciary.

Independent judges are increasingly an endangered species from at least four angles:

(1) Large sums of money are poured into local elections in some states to defeat judges whose decisions are unpopular with ideologues.

(2) There is hypocritical outrage among legislators over judicial decisions that must be made because they write vague laws in the first place.

(3) Disgruntled litigants, taking their cue from anti-judge rhetoric, settle scores with judges using guns.

(4) Judges in some cases have been known to telephone governors who have appointed them to determine what decisions to make, fearing adverse consequences from those who command vast powers of coercion.

Judges compliant to those who appoint them can be found around the world, but not in true democracies.

Michael Haas

Los Angeles

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Re “Judges Rule,” Opinion, June 26: The essay by Vikram Amar on judicial activism admirably attempts to explain complexities inherent in the subject. It helps us think carefully about a subject political demagogues would like us to oversimplify, in order to blame judges for decisions we don’t like. But I find lacking the accompanying essay (“Judges: The Law Is the Law”) by Douglas W. Kmiec, a very thoughtful gentleman with whom I simply disagree. He concludes, “Judicial candidates should be asked one question: Will they faithfully follow the law and not follow their personal preferences?”

Practically every judicial nominee would answer yes, and truthfully, even those you or I might vehemently oppose. As Amar points out, very often the meaning of the Constitution and other laws just is not clear. In the words of the Supreme Court in Marbury vs. Madison, the historic case Kmiec cites, “It is [the] duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”

For example, Kmiec argues against “judicial activism” by referring to the pre-Civil War Supreme Court decision that African Americans are not persons, “in defiance of the objective truth of human nature,” in Kmiec’s words. Of course African Americans are persons, but it is not because “person” in the Constitution has a clear meaning, as Kmiec implies.

The Supreme Court has ruled for more than 100 years that corporations are “persons,” contrary to what Kmiec correctly calls “objective truth of human nature.”

There may or may not be good reasons for treating corporations as persons, but the reasons are not in the text of the Constitution. That issue, like nearly every difficult issue in the law, involves interpreting the meaning of uncertain words in a law. You can call that “judicial activism,” a meaningless phrase as Justice Antonin Scalia points out in a statement quoted by Kmiec, but if you do, you are closing your mind to careful thinking on an important issue.

Ira Spiro

Attorney, Los Angeles

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Nothing more clearly demonstrates the need for additional “strict constructionist” justices on the Supreme Court than the recent decision by the liberals on that court to broaden the “takings” clause to the point where all homeowners are now at risk of having their homes confiscated by the state simply because the state figures it could collect more taxes if a factory or other business were on the site your home now occupies.

For those of us who cherish the few freedoms we still have left, more conservatives on the Supreme Court is the clear choice.

Ron Lutey

Camarillo