 |
|
Click on
the picture above to go to the official Florida
Supreme Court biography page. |
The
term “activist” is used frequently today to refer to judges and
courts. Conservatives call liberal judges activists. Liberals
call conservative judges activists. It is clear than neither end
of the political spectrum considers it a flattering term.
What
does it really mean to be a judicial activist? What are the
characteristics of an activist judge or court? Most agree that
an activist court is one that tends to write new law rather than
interpret existing law. Judicial activism manifests itself in
many ways.
For example, it
occurs when a court demonstrates an aggressive willingness to
infer public policy when the statute does not make that policy
choice clear. Similarly, an activist court frequently expands
traditional common law principles to new situations without
first deferring to the legislature to address the emerging
issues. To better define an activist court, it is helpful to
examine the court’s decisions as they relate to certain legal
indicators.
This 29-page report
focuses on five indicators, or signposts, indicative of an
activist court. If any of these indicators properly describe a
court or its decisions, the court is, by definition, an activist
one.
-
Prompt reaction
by the legislature repudiating a court decision and
restating the law as written.
-
Unpredictable and
inconsistent outcomes when dealing with similar legal
principles.
-
Repudiating its
own precedent and shopping in other state or international
courts to:
-
Find
jurisdictions that support its preferred outcome, or
-
Determine the
majority view and minority view….and then adopt the
minority view!
-
Insert
non-existent words or ignore the written words in a statute
or contract to secure the court’s preferred outcome.
-
Use vague or
general constitutional language to defeat the clear will of
the voters or acts of the legislature.
 The presence of any
of the above indicators is evidence that a Court is departing
from the role envisioned for the judiciary by the founding
fathers. Generally it is venturing more and more into the
legislative arena, and is indeed making new law rather than
interpreting the law as currently written. Unfortunately, the
presence of these characteristics also allows the judiciary to
be manipulated by litigants (or judges themselves) who prefer a
certain policy or outcome that cannot be achieved through the
legislative process.
A review of
recent Florida Supreme Court decisions illustrates the presence
of not just one or two of these indicators, but all of them ... and
repeatedly. By definition, the current Florida Supreme Court is
an activist court, the majority of its justices, activist
judges.
Read and Download Full PDF of Report: |
