Appropriate Activism

For most of us, "judicial activism" only becomes a problem when the a judge is doing something we don't like. I'll admit that I'm a lot less likely to consider the proper role of the courts when I hear about a decision that seems just and right to me. But Judge Manning's "sound basic education" rulings force even the most supportive observer to consider the question of judicial overreaching.

The News-Record has an editorial up today that concludes:

If [Manning is] overstepping his authority, it's because the appropriate officials haven't stepped up. Now they have to, or else defy a judge who's fed up with failing schools. - Greensboro, North Carolina: Opinion - Editorials: The education judge

There's a good conversation to be had about whether Manning is practicing judicial activism—we ought to try to agree that he is or isn't. But that conversation has got to include a recognition that court is where we end up when the other branches of government have failed. Much of the progress of the civil rights movement took place in federal courtrooms because the states, along with the federal legislative and executive branges, couldn't get it up to defend equal rights for all citizens. Were the judges activists? Probably. Were they wrong? Certainly not.


I consider his actions judicial activism

but then again, I see many important decisions as having an activism dimension . . . especially in the remedy phase. It's one thing to declare someone or some government guilt of violating a law. That part seems to me more straightforward. But what a jury or judge decides to do in terms of punishment, restitution or remedy seems to have much more latitude in some circumstances, despite growing attempts to make sentencing more systematic.

We don't have a perfect system, but we do have lots of diversity and "experimentation" in how that system serves We the People. This is good. Trying new things is the only way you find the path to improvement.

This is the Achilles heel in the conservative movement. They want to revert back to some delusional and nostalgic view they have of how things used to be -- blind all the while to the reality that you cannot go back. Our cycles in culture are not circles, they are spirals. Sometimes they go up, sometimes they go down. Progressives are committed to things going up. Conservatives are stuck in the wishful thinking that things can stay the same.