A Stitch in Haste

The Chief Justice has issued his annual Year-End Report on the Federal Judiciary, and has a message for his conservative counterparts in the Executive and Legislative Departments:

U.S. Chief Justice William Rehnquist expressed concern on Saturday that criticism of federal judges had increased in recent years, particularly for "judicial activism."

"Criticism of judges has dramatically increased in recent years, exacerbating in some respects the strained relationship between the Congress and the federal judiciary," he said in his 2004 Year-End Report on the Federal Judiciary.

"Although arguments over the federal judiciary have always been with us, criticism of judges, including charges of activism, have in the eyes of some taken a new turn in recent years," said Rehnquist, who has been absent from the Supreme Court since he was diagnosed with thyroid cancer in October.

As I have blogged previously, the use of the term "activist judges" by President Bush and other "conservatives" is the most pathetic form of empty pandering to the ignoranti of their "base." What's more, it's blatantly hypocritical -- are judges being "activist" when they decide in favor of Republicans (whether real or imagined)?

No one ever said it better:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

--Chief Justice John Marshall, Marbury v. Madison, 5 US 137 (1803)

Stated differently: many Americans, especially conservatives, seem all too eager to forget that "separation of powers" also means, or used to mean, co-equal branches of government. To disagree with a court ruling, or even with a jurisprudential philosophy, is one thing; accusing the judiciary of "abusing" their positions when in reality they are simply performing their most basic judicial function is political blasphemy. And the politicians know it.

Hopefully the electorate will start to realize it too.

NOTE: The 2004 Year-End Report is not yet now available online.

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