A while back, on January 27, 2010, (https://gideonstrumpet.info/?p=372 ) we had occasion to blog on the subject of judicial activism. Our point was that whereas liberals go on ad nauseam about the wickedness of judicial activism when conservative judges engage in it, they see nothing wrong with it when the shoe is on the other foot.
Here is another data point on that topic. The New York Times carries a puff piece (front-page, above the fold, no less) (William Glaberson, Top Judge Sets Liberal Course For New York, February 18, 2010, p. A1) extolling the virtues of Jonathan Lippman, the comparatively new Chief Judge of the New York Court of Appeals (that state’s highest court). And what might those virtues be?
“[Lippman] has helped turn the Court of Appeals into a scrappier, more divided and more liberal panel, its rulings and court statistics show.”
“The Lippman court has … shifted ground on worker injury, suits, saying that in the past the court too rigidly limited some of them. It has also signaled a new interest in arguments from criminal defendants, sharply increasing, at Judge Lippman’s urging, the number of appeals it is considering.”
Judge Lippman is quoted as saying that he is “a result-oriented person.” Oops! And here we thought that judicial result-orientation is a no-no because it is at war with the concept of the rule of law that in theory is supposed to lead the courts to results dictated by the impartial application of legal doctrine to the facts before them, not the results personally favored by individual judges. But what do we know? Judge Lippman says that being result-oriented is “Me meeting my constitutional responsibility in the best way that I can.” So there!
But don’t expect the familiar liberal panjandrums like UCI’s law school Dean Erwin Chemerinsky (who recently waxed wroth in the pages of the Los Angeles Times, denouncing the “judicial activism” of the U.S. Supreme Court, in connection with its recent Citizens United decision), to rise up in righteous indignation to denounce “result orientation” and “judicial activism” in this case, as he did when he thought that conservative judges were doing the same thing. It evidently all depends on whose ox winds up turning on the spit.
So like we said in our earlier post, judicial activism is a fact of life. It is as American as apple pie, and has been ever since the days of John Marshall. So maybe politicians of both stripes as well as the usual academic suspects will stop kvetching about it when a particular decision that changes the law is not to their liking and concentrate on the quality (or lack thereof) of judicial decision-making.
Of course, it would be better if courts spent more time on resolution of disputes and interpretation of laws through application of legal doctrine, and less on thinly disguised acts of governance. But as long as they do the latter, and take pride in it, they can expect criticism from the people who, not unreasonably, feel that those who would govern them should be accountable to them, the familiar cries of “judicial independence” notwithstanding. As one of our favorite Judges, Alex Kozinski of the U.S. Court of Appeals once put it: “When we act like politicians, we will be treated like politicians.” And that, Your Honors, though not the best of judicial worlds, is how the democracy cookie crumbles.
That’s not quite the end of the story because this blog is supposed to be about eminent domain, isn’t it? And with the New York Court of Appeals hip-deep in controversial eminent domain litigation, you would think that this topic would deserve some mention by the New York Times, along with torts, crimnal law, and all that other good stuff that quickens the liberals’ pulse. But no. You won’t find so much as a mention of this subject in this article. Sort of like that Sherlock Holmes story in which the plot turned on the fact that the dog didn’t bark in the night.