Judicial activism? What’s their agenda?

I still remember my seventh grade civics class where we learned that the United States Constitution served as the catalyst of our government. It seemed pretty straight forward for a 12-year-old at the time.

Because of our history and the fear of any particular person or group of persons abusing its power, our forefathers had the forethought to establish three equal branches of government — the legislative, executive and judiciary. This would ensure a checks-and- balances type of government where all were accountable to the citizenry it served. For the last several years the judicial branch of government has come under intense attack from various special interests groups who seek to destroy the foundation of its authority. It seems to have become the political du jour to attack the men and women who take on an essential role of government — judges. For the last several years, various politicians — from either the executive or legislative branch of government — have pushed agendas to intimidate judges across the country. These attacks usually are shrouded in catchy political catch phrases such as “judicial activism.”

This form of political bullying is not without precedent. A couple of years after I took that seventh grade civics class, I took an American History class which taught me about FDR’s New Deal. During the first few years of his administration, President Roosevelt was frustrated by the fact the United States Supreme Court struck down much of the New Deal legislation.

Roosevelt’s solution? Amend the U.S. Constitution to have more justices appointed to the bench, which he would then dutifully appoint. Roosevelt, of course, assumed that these newly appointed justices would be more sympathetic to his New Deal legislation. Fortunately, Roosevelt’s myopic solution to pack the Supreme Court never manifested itself. His legislation was curtailed to some degree, passed by the legislative branch of government, and declared constitutional by the Supreme Court a few years later. Checks and balances anyone? Incredibly, some politicians apparently did not learn from Roosevelt’s shortsightedness. Last year, Gov. Rick Scott grew frustrated with the Florida Supreme Court’s rebuke of some legislation he favored. His solution? Amend the Florida Constitution to create two supreme courts – one civil and one criminal.

Coincidentally, the justices perceived to possibly rule unfavorably were slated to go to the criminal division – the others would remain on the civil side. This would, of course, then give Governor Scott the opportunity to dutifully appoint at least three more justices to the bench. The bill died during the 2011 Florida legislative session.

This trend to challenge judicial decisions is not limited to politicians. During the 2010 election season, a zealous group started raising funds to unseat sitting justices on the Iowa Supreme Court. The reason? It did not agree with how these justices had interpreted the Iowa Constitution. Their political rallying cry? That catchy political catchphrase used to describe a judge’s decision with which they disagree: judicial activism.

They were successful.

The judicial branch of government has historically remained free from political influence. A judge is supposed to interpret laws in light of applicable state and United States Constitution. It is how Chief Justice Earl Warren, appointed by President Eisenhower, upheld legislation signed into law by President Johnson. And how — until the United States Supreme Court recently ruled — some judges appointed by President Clinton struck down portions of the health care law endorsed by President Obama. You see, a judge is supposed to rule regardless of personal political preferences or beliefs. This can only happen when they are free to make decisions without the fear of political backlash.

During the 2010 election an organization formed to try and out seat two Florida Supreme Court justices because it did not agree with how the justices had ruled on a case before it. They were unsuccessful. This coming November they have taken on three other justices in our state for the same reasons. It is certainly everyone’s democratic right to challenge anyone in office if they are not fit for the position held. In fact, it is our responsibility to ensure that someone not fit for office not remain in office.

However, it is also all of our responsibility to look at the motivation behind groups and organizations seeking to assert political influence on others who may not have had the opportunity to inform themselves as they should. It is our responsibility to ensure that we not allow others to influence our decisions when they are motivated on political agendas premised upon unfounded reasons.

This is why former justices appointed by conservative governors, such as Raoul Cantero, are coming to the defense of other justices appointed by more liberal governors; and why former justices appointed by liberal governors, such as Harry Lee Anstead, are coming to the defense of other justice appointed by more conservative governors. These individuals recognize that ousting a judge because politicians do not like a legal decision will destroy the core of our democracy.

So when you see those catchy commercials which will inundate the air waves in the coming weeks with catchy phrases such as “judicial activism”, ask yourself, “Really? Judicial Activism? What’s their agenda?”

David Sampedro is an attorney with the Pinecrest law firm of Panter, Panter & Sampedro.

He may be contacted by calling 305-662-6178 or by sending email to dsampedro@panterlaw.com

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