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Activist judges do more harm than good because when they legislate from the bench, they take unto themselves powers not granted them by the Constitution, and that erodes the separation of powers that is meant to safeguard against government abuse of power.

Perinquus wrote:Activist judges do more harm than good because when they legislate from the bench, they take unto themselves powers not granted them by the Constitution, and that erodes the separation of powers that is meant to safeguard against government abuse of power.

But then I would imagine that your activist juges would argue that they prevent the abuse of power by the Congress and executive, which is part of the seperation of power. They could also argue that they hold to the intent of legislation in something like Jim Crowe laws, or the like, where there was institutionalised racism or another injustice that morally had no place. Naturally a Judge can be an exteme of one or the other, and extremes tend to be bad, but thats why you have your separation of powers, so that one can cancell out the other.

Stuart Mackey wrote:

Perinquus wrote:Activist judges do more harm than good because when they legislate from the bench, they take unto themselves powers not granted them by the Constitution, and that erodes the separation of powers that is meant to safeguard against government abuse of power.

But then I would imagine that your activist juges would argue that they prevent the abuse of power by the Congress and executive, which is part of the seperation of power. They could also argue that they hold to the intent of legislation in something like Jim Crowe laws, or the like, where there was institutionalised racism or another injustice that morally had no place. Naturally a Judge can be an exteme of one or the other, and extremes tend to be bad, but thats why you have your separation of powers, so that one can cancell out the other.

They prevent an abuse of power by congress when they strike down legislation that is clearly unconstitutional. Strict constructionists do this. Judicial activists do more than that. They essentially make law by judicial fiat. However, not only does the Constitution give them no power to do this, they are not elected representatives; they can't be voted out of office when they make bad laws. The whole principle of democracy is that laws are made by those answerable to the people, which judges are not. Activist judges subvert the democratic process, and this will only hasten the accrual of power in the hands of the government at the expense of the people.

Perinquus wrote:

Stuart Mackey wrote:

Perinquus wrote:Activist judges do more harm than good because when they legislate from the bench, they take unto themselves powers not granted them by the Constitution, and that erodes the separation of powers that is meant to safeguard against government abuse of power.

But then I would imagine that your activist juges would argue that they prevent the abuse of power by the Congress and executive, which is part of the seperation of power. They could also argue that they hold to the intent of legislation in something like Jim Crowe laws, or the like, where there was institutionalised racism or another injustice that morally had no place. Naturally a Judge can be an exteme of one or the other, and extremes tend to be bad, but thats why you have your separation of powers, so that one can cancell out the other.

They prevent an abuse of power by congress when they strike down legislation that is clearly unconstitutional. Strict constructionists do this. Judicial activists do more than that. They essentially make law by judicial fiat. However, not only does the Constitution give them no power to do this, they are not elected representatives; they can't be voted out of office when they make bad laws. The whole principle of democracy is that laws are made by those answerable to the people, which judges are not. Activist judges subvert the democratic process, and this will only hasten the accrual of power in the hands of the government at the expense of the people.

Well whether this is good or bad depends on the intent of the legislation in question. To be honest I dont know to what degree you have activist Judges, not being an American, and how your law allows for interpretation in comon law. Here a judge must take into account the social mores of the day when passing sentance. As a result judges give out harsher terms recently compared to the past, this is due to a desire on the publics part for a better fit of punishment to crime. But having said that, no judge here would ever go beyoned the legal limit imposed by Parliment, for only Parliment can set what penalties can be imposed.

Perinquus wrote:They prevent an abuse of power by congress when they strike down legislation that is clearly unconstitutional. Strict constructionists do this. Judicial activists do more than that. They essentially make law by judicial fiat. However, not only does the Constitution give them no power to do this, they are not elected representatives; they can't be voted out of office when they make bad laws. The whole principle of democracy is that laws are made by those answerable to the people, which judges are not. Activist judges subvert the democratic process, and this will only hasten the accrual of power in the hands of the government at the expense of the people.

There's a problem here. The power of judicial review (in America) is itself not found within the Constitution. It was an activist judge (Chief Justice John Marshall) who essentially arrogated this power to the court in Marbury v. Madison in 1803. A strict constructionist judge may not declare something unconstitutional, since the Constitution does not explicitly give him that power. Moreover, judicial review is the epitome of an undemocratic concept - a bunch of unelected officials who serve for life can strike down any law, at any time. Therefore, if you are for strict constructionist judges, and for the "democratic process" (whatever that is), then you can't be for judicial review.

Let's not forget that there are good things that activist judges have done, at the national level:
Brown v. the Board of Education of Topeka (integration)
Baker v. Carr (one person, one vote in state govt)
Griswold v. Connecticut (right to privacy)
Roe v. Wade (abortion)
McCulloch v. Maryland (primacy of national power over states' rights pursuant to the necessary and proper clause)
University of California Regents v. Bakke (allowed race to be taken into account in college admissions)
Miranda v. Arizona (the Miranda rights)

I don't like extremely activist judges, but I don't think that anyone does. The right amount of of activism is what it needed - enough to strike down clearly immoral laws (such as those allowing or promoting segregation) and practices (abuses of police power) even if there's no strong Constitutional justification for it.