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October 26, 2004

'Judicial activism' depends on point of view, judges say

By Mandy Erickson

With legislators trying to limit the topics on which judges can rule and the president proposing constitutional amendments to bypass "activist judges," a panel of magistrates lamented threats to judicial independence at a discussion Saturday sponsored by Stanford Law School.

"It is absolutely vital that judicial independence be maintained," said Ronald George, chief justice of the California Supreme Court and a 1964 graduate of the Law School. "If I ever woke up in the morning and worried about who was looking over my shoulder, it'd be time to hang up my robe."

Larry Kramer, dean of the Law School and moderator of the panel, introduced the discussion by saying that U.S. courts, legislators and citizens have been at odds with each other since the 1780s. While tension between the groups has waxed and waned over time, he said, "the last 10 years have seen this grow into a much more important issue."

Recent legislative and executive actions back this up: A bill that would limit federal courts' ability to rule on cases involving the display of the Ten Commandments is pending in Congress. Last month, the House voted to prohibit federal courts from hearing cases that challenge the constitutionality of the Pledge of Allegiance.

And President Bush, who complains that judges are trying to shape state and federal laws through court rulings (so-called "judicial activism"), is pressing for a constitutional amendment banning same-sex marriage.

The judges on the panel noted that judicial activism depends on point of view: Those who agree with a ruling tend to believe it upholds the rule of law, while those who disagree will frequently say judges are overstepping their bounds.

"Often activism is in the eyes of the beholder," George said. "It boils down to whose ox is getting gored."

However, Ninth Circuit Judge Pamela Rymer, another 1964 graduate of the Law School, cautioned that when judges focus too much on achieving justice rather than defining the law, they can erode public confidence in the judicial branch.

"My activist colleagues would probably say that the judge's primary role is to protect individual rights and achieve social justice?that social justice is the guiding principle of the judicial branch," Rymer said. "Over time, that leads to instability and lack of predictability in the law."

She added that judges should "make decisions that are channeled by precedent and constrained by duty rather than how we would prefer it to be."

As for current tensions between the legislative and judicial branches, U.S. Supreme Court Justice Stephen Breyer, who earned his bachelor's degree from Stanford in 1959, noted that his colleague and fellow Stanford graduate Sandra Day O'Connor said the U.S. Supreme Court's relationship with Congress is the worst she's seen.

"We don't know exactly what to do about it," he added. "We're not going to change our decisions."

High-profile cases always attract plenty of criticism, Breyer said. But that doesn't really concern him. "It's the budget, frankly. It's the unfortunate topic of money."

The panelists agreed that state and federal judicial branches are in an uneasy situation because legislators control the budget. Rymer noted that without money for probation officers, civil juries and an adequate number of judges, the power of the judicial branch is diluted.

"The judicial branch is the most vulnerable in terms of retaliation by the other two branches," George said.

Voters pose another threat to judicial independence, Breyer added. Giving the example of a judge who is overseeing the trial of a very unpopular defendant, he said, "It's not that easy for a judge to conduct a fair trial if he's up for election next week."

But while Breyer was appointed for life, George, whose post is up for election every 12 years, said, "I'm not entirely envious of the federal appointment process. I think going before the U.S. Senate can be more troubling than going before voters."

Supreme Court justices have come under fire not only for handing down rulings that rankle their critics but also for citing foreign courts in their decisions. Kramer noted that while some say such citations reflect the fact that U.S. courts are part of an international community, others believe that the courts should look solely at U.S. laws.

Rymer advocated caution in looking to foreign courts. Courts outside the United States use language that refers to their own political, cultural, religious and economic heritage, she said. "We need to be very careful. Our authority to interpret the Constitution comes from the American people."

Breyer agreed that using caution is essential, but said that in certain cases, "maybe we can learn from another human being in a similar situation with similar problems."

When a member of the audience said that he'd recently returned from Ukraine, where judges are subject to pressure from political parties, the panel concurred that judges in the United States enjoy a great deal of independence.

"We've all expressed some concerns," George said, "but they are minor when compared with those of other countries."

He described a visit from a delegation from Yemen who watched what George described as "boring" court proceedings. Afterward, when George asked what the Yemenis thought, one said, "I thought it was fascinating."

Through an interpreter, the Yemeni added, "The spectacle of your government having to plead its case in court just like any other litigant has me in awe."

Breyer said that while the judicial branch is currently in the hot seat, the country has seen significant progress since President Jackson ignored a Supreme Court ruling to grant northern Georgia to the Cherokee and President Eisenhower had to call in troops to enroll black children in a white school.

After Bush v. Gore, Breyer said, "Despite those strong disagreements, nobody ever thought of troops, nobody ever thought that decision wouldn't be obeyed. That is fabulous?that is a treasure that has taken 200 years, a civil war, 80 years of segregation and a lot else besides. The challenge is to pass just that along to the next generation."

A video of the panel discussion is scheduled to be posted by Wednesday, Oct. 27, at

Mandy Erickson is a freelance writer.

Editor Note:

A video of the panel discussion is scheduled to be posted by Wednesday, Oct. 27, at



Judith Romero, assistant director of communications, Stanford Law School: (650) 723-2232,

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