"Down With Judicial Activism, and Down With Judges Who Don't Give Me What I Want"

Sorry, but you can't have it both ways. Here's Reverend Mark H. Creech railing against Judge Hight for throwing out the NC lottery lawsuit brought by (former) Justice Orr and the NC Institute for Constitutional Law:

It's a considerable disappointment Judge Hight failed to stop the injustice perpetrated by the way in which the lottery garnered passage. The judge states a number of findings in his ruling, but fails to give any rationale for his decision that the lottery was passed constitutionally.

Here's what Creech won't tell you: the decision he desired would go against the authoritative weight of judicial precedent on the matter. After the lawsuit was filed, I hit Westlaw and read the cases that had interpreted the section of the NC constitution that Orr's complaint was based on. The opinions are not unanimous, but the NC courts have been generally unwilling over the years to find that various kinds of state actions constitute taxes. The balance was tilted so strongly against finding a tax in this case that I chalked the NCICL case up as a PR or stalling tactic and assumed it wouldn't go anywhere.

My point? Creech is upset because the court didn't step outside of its established bounds to give him the decision he wanted. In other words, the court simply applied the law and refrained from rewriting it. Creech might not have read the cases, but it doesn't make his position any better: he's still demanding a result that suits his sense of morality without regard for what the law actually says.

Creech would probably claim to be opposed to judicial activism. He didn't like the Kelo decision at all—"Make no mistake about it: the High Court's ruling was an act of tyranny." In fact, it sounds like he's willing to lay just about everything he doesn't like at the feet of the judiciary:

Did you realize every public policy issue tearing away at the moral fabric of our nation — no prayer in the schools, no posting of the Ten Commandments, abortion, the abolition of sodomy laws, etc. — were all foisted upon us by judicial activists who were bent on making law rather than interpreting it?

Judicial activism is like pornography—you know it when you see it. Judges do overreach their authority; it happens. That's why checks and balances are important. But it doesn't just happen in the service of progressive causes. Rev. Creech's desired outcome in this case would have been right-facing judicial activism. Which Reverend Creech doesn't like. Except when he does.

Actually, maybe judicial activism is like fairness. There truly are unfair situations in the world. But I find that most people use the word "unfair" for anything they don't like, without real thought about whether the situation is unfair in any objective sense. Likewise, while "judicial activism" is a phrase with important content, it's usually just thrown around to mean "decisions I don't like." That's lazy, irresponsible, and a red flag to an audience that the speaker is full of hot air.

Comments

SCreech!

Kinda reminds you of this little rant, doesn't it?