Activist Judges and Constitutional Law

The phrase 'activist judges' is concocted by conservatives as an emotionally laden stand-in for "I don't like how they ruled." They complain judges have no right to interfer in their lives, that they should not legislate from the bench. Let's think this through.
When it comes to judges interfering in people's lives -- that's what they do -- they send people to jail, the let them go free, they impose fines and other penalties, they interfere. Superior and Supreme Court judges don't operate at that individual level. Rather, based on specific cases, they tell us what our over-arching laws currently say. They are not legislating, they are reporting the status quo of current law.
Let's look at same-sex marriage in California as a case in point. In May of 2008, the California Supreme Court told the state 1) their current laws enforced nondiscrimination against gay/lesbian people and 2) marriage was deemed a basic human right by the U.S. Supreme Court. Therefore, they could only rule the way they did based on the current law. They were not "imposing" anything on the state, they were telling Californians the status quo of their current law. Proposition 8 proposes to change current law, but the same court must now debate whether a basic human right - marriage - can be denied to a minority by a majority. The Court appears to be leaning toward letting that happen. If they do it will be a mistake, flying in the face of 200 years of American jurisprudence. If they strike down Prop 8, it will not be "activism," it will be constitutional law at work based on current rulings from the United States Supreme Court on the nature of our own U.S. Constitution.
The U.S. Constitution was specifically designed to protect the rights of minorities from a majority who just doesn't like them. That's why Irish, Italian and other unpopular immigrant groups over the years were able to settle in this country and make a life for themselves. It is why Jews don't have to become Christians, Catholics don't have to become Protestants (or vice versa) and we can all practice any religion or none at all. It is why women have voting rights and we no longer have slavery. The Constitution is a living document that continues to imbue our society with greater individual liberties. This is despite the desire of religious conservatives who have, unfortunately, opposed such moves at every turn - slavery, women's rights and so forth. Read your history. Take a civics class. This is not judicial 'activism,' this is your democracy at work.

The Dumbest Ruling in Court History... and its cure

Lilly Ledbetter worked for Goodyear for nearly two decades (1979-1998) when she discovered she had been consistently paid less than her male equals. She sued and the case went all the way to the Federal Supreme Court. This would be the Supreme Court now loaded up with Bush's "business friendly" appointees. In a mind-goggling ruling, they did not deny that Lilly had been discriminated against, but ruled she needed to file her complaint within 180 days of the first occasion of discrimination. Justice Alito, speaking for the majority of the court (5 justices) stated, "she could have, and should have, sued" when the pay decisions were made, instead of waiting beyond the 180-day statutory charging period. That would be nearly 20 years earlier when she had no knowledge, and no way of knowing, she was being discriminated against. This ended her lawsuit and left her bereft of even the money she should have earned, let alone any damages or interest she should have been paid. If ever there was a ruling that reeked of favoritism and unfairness this was it. In effect, it said if a corporation can keep you from knowing you're being discriminated against for 6 months, they get a free pass. This was, in my opinion, the dumbest ruling in legal history... or at least since the Roman Emperor Caligula made his horse a Senator.

In response, the Democratic Congress in April 2008 attempted to pass legislation -- The Lilly Ledbetter Fair Pay Act -- to remedy the legal situation and make sure this never happened to another person, male or female. The Republicans opposed it, and while the house passed it, the Senate could never muster enough support to overcome a threatened Republican filibuster. It never came to a vote. Even if it had passed, Bush had already threatened to veto it. If you're not outraged yet, you're not paying attention.

What is the cure? The House of Representatives this past week once again took up the Lilly Ledbetter Fair Pay Act and passed it with an overwhelming majority. However the Senate still does not have a filibuster proof majority. It is going to be up to us citizen-leaders to apply the heat to our Senators, especially if they are Republicans. I urge you, if you believe in fairness at all and that everyone deserves equal pay for equal work, to call your Senator, regardless of party affiliation and even if you have never done so before. Tell your Senator to support the Lilly Ledbetter Fair Pay Act.

Visit this site: http://www.visi.com/juan/congress/ and click on your state in the interactive U.S. map. It will pull up a list of your Senators. Click on the Senator's name or webpage and find links to send the Senator an electronic message or make a phone call.