But as I pointed out in my other post, socialism and facism have very clearly defined meanings, yet politically the two words are close to meaningless anymore as they apply to American politics. They've become nothing more than emotionally charged rhetoric designed to rile up the public and nothing more.
And that is much the way "judicial activism" is -- for your example you had to go back to a decision made almost 40 years ago to find a real case of judicial activism.
But for a good example of something being called judicial activism that isn't, there is the recent case about the National Day of Prayer. Instead, it is called "judicial activism" to rile up the masses, even while most people don't even understand the ruling. First, the judge did not prohibit the President from declaring a National Day of Prayer -- even if her ruling stands Presidents can still make these declarations.
Instead, she very narrowly crafted her ruling, showed how the Constitution and previous courts interpreted similar things, and only ruled that the law that requires the President to declare a National Day of Prayer to be unconstitutional. The brief is well reasoned and she supports her decision well -- you can
read the full decision here.
Now, I understand that some people will disagree with the decision but disagreement is not "judicial activism" -- and that is the problem with the term, as I previously stated, "judicial activism" as a term has become meaningless because it is used solely to mean a decision that I disagree with.
Nicely said. In fact, one point I would differ with you on is this: "...and only ruled that the law that requires the President to declare a National Day of Prayer to be unconstitutional." Actually, I would word it "...and only ruled that
the specific section of the law that requires the President...".
That to me is the key point. Congress cannot
require anybody to do anything religious -- including the President. They can legally adopt resolutions acknowledging this country's dependence on Almighty God, or the good work of Catholic Charities or the SBC's outreach programs for people struck by disaster, or whatever. But they cannot require that anybody do anything that is a religious act.
The President can proclaim a National Day of Prayer. In over 60 years of life, most of them as a student of American history and law, I've never seen or heard of a President who wouldn't. But Congress cannot
make him do it -- that violates the Establishment Clause.
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While we're on the subject, a good example of judicial self-restraint that's held up by the right as 'judicial activism' is the Goodridge decision requiring gay marriage in Massachusetts. Not to start a morality-of-gay-marriage debate here -- and if anyone wants one, go to CP&E or E&M where the board rules require they be conducted -- but what happened is this:
1. Massachusetts law contemplated only one man/one woman marriages.
2. Massachusetts' state constitution included an equal protection clause that specifically prohibited discrimination on the basis of sexual orientation.
3. Goodridge brought suit to get the marriage law overturned because it did not permit gay marriages.
4. The court took a look at the arguments and
properly found that the statute conflicted with the constitutional provision. In such a case, the courts are
obliged to overturn the statute as being uncontitutional.
5. Instead of doing that, they wrote a ruling stating that was what they were obliged to do, and then
stayed it for six months, to give the Legislature time to bring the two into accord. They could amend the constitution to abolish the sexual orientation provision, to say it didn't include gay marriages, or to define marriage. They could amend the statute to permit gay marriages. Or something else that doesn't occur to me right at the moment. (Note that a constitutional amendment could not become active within six months -- but if the legislature had chosen that route by starting the amendment process, no doubt the stay would have been extended.)
The key point is that they didn't "declare gay marriages legal" by judicial fiat -- they said that the law prohibiting them fell afoul of the state constitution, and it was the legislature's job to fix the problem one way or the other.
The legislature of course chose to legalize gay marriages, as we all know. But note that the judges did their job and then let the legislature make the call how to fix it. That's judicial self-restraint, not judicial activism.
Judicial activism is not ruling against what I think ought to be done. It's judge-made obligations on people not supported by the text, implications, or precedent of the law.
