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October 17, 2006

Judicial Activism Prompts Citizen Efforts to Restrain Judges
by Pete Winn, associate editor


Voters in several states will get a chance three weeks from now to vote on initiatives aimed at reining in out-of-control courts.

Outrage over judicial activism has been so high in the last few years that voters in several states will face something new this fall: ballot initiatives designed to restrict the role of judges.

"You have ballot questions this year in South Dakota, Montana and Colorado proposing different ways to try to rein in out-of-control judges," said Bruce Hausknecht, judicial analyst for Focus on the Family Action. "But the larger picture, the details of the efforts aside, is that people all over the country are attempting to take back the courts from judicial tyrants."

South Dakota 's Amendment E is the most ambitious measure — it would allow residents to sue judges over their decisions. Grand juries would be convened, and judges would face removal from the bench if they were found guilty of an infraction.

Montana voters, meanwhile, must decide if they want a less stringent reform — the right to have recall elections if they should become "dissatisfied" with a judge. And in Colorado, the subject is term limits for jurists.

"Colorado Amendment 40 simply says all 19 members of the court of appeals and the seven members of the Supreme Court of Colorado will be allowed to hold office for no longer than 10 years," Hausknecht said.

Like all of the proposed initiatives, the Colorado measure has an upside and a downside, he pointed out.

"The upside is by cycling judges in and out, it lowers political infighting, and it would keep judges from being entrenched," Hausknecht said. "The downside is you won't get many young or middle-aged judges applying for those jobs, because they would have to give up a law career."

There are other less ambitious amendments: one in Oregon would require judges to be elected by geographic district. Then there are Proposition 90 in California and an initiative in Nevada that would take some cases out of the hands of judges by restricting the government's right to condemn private property.

Finally, voters in North Dakota will face a ballot question that would restrict the ability of judges to settle custody disputes.

"A lot of the measures are trying radical new experiments in reining in these judges," Hausknecht said, "and no one can say for sure if these will help, hinder or do nothing with regard to the perceived problems in that particular state."

Regent University Law School Professor Bradley P. Jacob said there's a reason why people are now trying to exert some control over a runaway judiciary.

"We're in a world where judges decide so many issues that when people get upset about an issue, they tend to look at a judge as they would as a legislator," he told CitizenLink. "They tend to get frustrated that they don't have the same level of political accountability over a judge that they have over a legislator."

The nature of the judicial function has changed dramatically in the last few decades, Jacob explained.

"The traditional ideal was that judges are not political partisans; judges are not supposed to be deciding public-policy issues in our society," he said. "Judges are supposed to be wise and impartial people who sit back and look at the law, and look at a case that comes before them and decide in a very fair and even-handed way how this settled established law applies to this particular set of litigants."

That concept led to federal and state constitutions trying to insulate judges from political pressure.

"Unfortunately, what's happened is that the model has changed — especially in the federal system," Jacob said. "In many ways, judges have become public- policy makers."

The reality is, he added, that abortion is going to be decided in the courts, as will issues like gay marriage and affirmative action.

"It's not enough for me or for any American to just say, 'Will that person be a wise judge?' " Jacob said. "Now I want to say, 'Does that person share my opinion on all the issues?' Because they are going to be the ones deciding the issues, so I want to make sure that these judges agree with my policy preferences, as well. It's become very partisan and very contentious."

Jacob said it’s a strange balance — the judiciary must be independent, but it is also perfectly appropriate for taxpayers to kick around the idea that more political accountability may be in order.

"If judges are going to be policymakers," he said, "the people need to have some sense of control over them, instead of just feeling that, 'These people get in, and we don't even know how they get in, and then once they're in, they are in forever and we can't do anything about it.' That produces the kind of frustration I think we're seeing right now."


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