Bad judicial activism is taking away rights of the legislature. But where exactly does the law come from. Before the legislature, there was the Common Law, from England. Up until the 1900s, the legislature did not legislate anything falling under the four common law subjects – Property Law, Contracts, Criminal Law, and Torts. When looking at case law and determining how to rule on issues in those situations the Supreme Court relied on the common law. In recent years the legislature stepped in and took over the jurisdiction of criminal law. Contracts and property law are beginning to have more legislature involvement, but torts remain primarily common law.
So, if these four areas of law are relying on common law, then how can the Court interpret them without taking the law into their own hands? Simply put, if it doesn’t belong to the legislature, if it’s something the legislature did not make, then the Court is not taking into their hands the law that should belong to the legislature. This is judicial activism, because the Court is taking the law into their own hands. The difference between this type of judicial activism, and the judicial activism most commonly seen today is that one is good and perfectly Constitutional, and the other violates the powers granted to the Judicial Branch in Article III of the United States Constitution.
This difference between good and bad judicial activism is very necessary to be distinguished. The line between the two cannot be blurred, and whoever is a Supreme Court Justice needs to realize that, and follow it. It is of utmost importance for a nominee to have proven to know there is a difference. For this reason it is concerning to see the nomination of Harriet Miers. With no “paper trail” so to speak, there is no way to know what she believes. If we can not know beforehand that she will respect the subject of judicial activism, we can not trust her. If someone like Janice Rogers Brown for instance were nominated, then we could have a clearer understanding.
Can we trust the President on this? He’s proven to be a big-government, money-spending, not-quite-the-conservative-we-thought. President Bush has promised us things before, but they haven’t come to pass. We were told Sandra Day O’Connor would be conservative, but she didn’t turn out that way in the end. Dare we accept his word on this? Or will he betray us, as he has in other issues, and allow the Courts to continue down the path of bad judicial activism?
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