We live in very dark and restless times indeed. According to screaming headline after screaming headline, wild-eyed pundit after wild-eyed pundit, our nation is besieged from within by a festering malice, a rankling infection whose touch threatens to taint every corner of this land. Indeed, to hear it told by some, the very foundations of our society are under assault by this pernicious ruin. Im talking about something more potentially calamitous than avian flu, something more pumped up on apocalyptoid steroids than a partnership between global warming and Godzilla.
Im talking about the scourge of liberal activist judges (boo, hiss, terrified gasps).
Now theres been an awful lot of fiery talk about liberal activist judges in recent months, and I have to admit that when I first heard about some of the alleged legal butcheries attributed to these sinister robed figures, I was shocked. Just some of the stories which spring to mind: Cackling Liberal Activist Judge Burns Constitution, Urinates on Bill of Rights on Senate Floor; Debauched Liberal Activist Judge Names Playboy Mansion New Seat for High Court of the Land; and Liberal Activist Judges Stage Coup, Seize Power in Massachusetts Courts. As it later turned out, the Massachusetts judges were appointed perfectly legally, leading the source running the original story to proclaim the entire citizenry of Massachusetts a bunch of filthy liberal activist judges.). People now nervously double-bolt their doors at night and refuse to go out after dark for fear of running afoul of an LAJ, creatures known for their witching-hour tendencies. When tucking in their children at night, millions of parents first have to check within closets and beneath beds for LAJs at the request of wide-eyed, terrified youngsters who have heard the rumors of kids disappearing inexplicably on the way home from school in areas known to harbor such vicious adjudicators.
Boy! I thought. These liberal activist judges sure are taking over everything! Then, just as I was preparing to buy a 12-gauge and hit the streets to administer some active justice of my own against this dark menace, I realized I was probably watching too much Fox News, tuning in to too much conservative talk radio, and/or suffering from paranoid delusions. Those same members of the judiciary who tend to get tagged with that nonsensical label are actually those keeping in check the more activist psychos currently on the loose, like the ones who want to put intelligent design on the high school biology curriculum (by rewriting definitions of science itself to incorporate supernatural explanations for the world; how long before poltergeists appear in physics textbooks?) or those who actually think Christmas is currently recovering at the war hospital.
Indeed, its not entirely obvious what is meant by the term liberal activist judge, or what, for that matter, distinguishes an L.A.J. from any other judge. The standard definition propagated by all those crazy-talk pundits is that liberal activist judges act as tyrannical lawmakers who rewrite legislation on the bench and twist the law according to their own evil whims. Their decisions allegedly mar the law with the stamp of personal prejudice and morality rather than dutifully interpreting it.
Unfortunately, it seems implausible that any judge in the history of this nations judiciary -regardless of their political leaningscould be said to have risen up to the high ideal of strict interpretation. All judges, are, to some degree, activist; theres a reason judges hand down opinions and not truth. Sure, in an ideal world impartiality would govern the courtroom. No judge would ever let a personal agenda, value, or conviction color his or her decision. But attaining such an ideal is simply not possible, for the simple fact that judges are human beings, with the same attendant array of prejudices and biases. They are capable of interpreting the law only through one lens, one point of view, and their interpretation, whether consciously or not, will to some degree be influenced by who they are. The act of interpretation itself cannot help but be distorted by the factors one judge takes into consideration and the weight accorded each (frequently matters of opinion). All judges, liberal and conservative, are activists, merely pulling in different directions, and morality, wily critter that it is, worms its way into all kinds of places that it shouldnt. Want examples of some slightly less liberal activist judges? Last year in Maryland, a federal judge barred schools from adding material covering homosexuality to its health curriculum, quietly interpreting a little intolerance into the law. And last May, an Indiana judge issued a ruling in a divorce case stating that a couples child could not be exposed to religious beliefs outside of the mainstream, a decision obviously based on a slanted reading of the Constitution. Such rulings reveal heavy doses of morality injected from the bench, and theyre hardly isolated incidents.
Theres also a strong argument to be made for the fact that those who penned the Constitution did not do so on stone tablets for a reason. The fact that provision was made for the possibility of amendments seems to indicate they were aware the document itself might change and evolve over time. Interpreting the Constitution may in fact require viewing it as a dynamic document that must be read in the context of our present time and place as a society.