MASS. SUPREME COURT JUSTICE COUNTERS "JUDICIAL ACTIVISM" CHARGE: From the Boston Globe

The chief justice of the Supreme Judicial Court defended the judiciary yesterday against the charge of "judicial activism" that has been leveled by President Bush and Governor Mitt Romney since the ruling that legalized same-sex marriage in Massachusetts.

Margaret H. Marshall, the author of the landmark ruling, also told a Greater Boston Chamber of Commerce breakfast that she opposes a trend around the country toward elected judges, and she dismissed what she called "attack politics" that sometimes ensnares judges.

"I don't think they are activist judges," Marshall said. "I think they are judges doing their constitutional duty." ...

"I don't think we should elect judges," Romney said. "I do think we should have an independent judiciary. I think those of us who appoint judges should look for individuals who will interpret the constitution and the laws of the land strictly and will not branch off on their own social agenda for something that they may choose to promulgate. That's the job of the Legislature, to decide what the social direction of our country will be. The Legislature makes laws, the courts should interpret them, and I think our Supreme Judicial Court went beyond that boundary." ...

Yale University law professor Akhil Reed Amar, author of a forthcoming book, "America's Constitution: A Guided Tour," said tensions between lawmakers and the courts reach back at least to the US Supreme Court's Dred Scott decision on slavery that helped hasten the nation's descent into civil war.

But he also argued that the tension between the courts and elected lawmakers is probably tied to what he sees as the growing role of the judiciary in America. In its earliest years, the United States had five members of the US House of Representatives for every federal judge, Amar said. Today, he said, there are two federal judges for every congressman.

What's more, he said, the first 80 years of the nation saw the courts overturn just two acts of Congress. Today, by contrast, the courts do so an average of four times a year.

"I think the federal judiciary is more powerful today than it ever has been, more powerful than in the era of John Adams, whom [Marshall] invoked," said Amar, who described himself as an admirer of Marshall's.

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posted by Eve at 7:54 PM | link

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