Judicial activism.
You've heard that phrase trotted out routinely whenever some individual in a black robe renders a decision that doesn't appeal to social conservatives. Abortion? Gay marriage? Both given as examples of a judiciary drunk with power and all too willing to substitute its viewpoint for the will of the people.
Well, now people are speaking on another topic. They're taking a look at capital punishment, and they don't like what they see.
According to a story by Dahlia Lithwick of the Washington Post, eleven states have ended the death penalty and eleven more are considering moratoriums or repeals. These actions are buttress by a survey which found 48 percent support for life imprisonment over inflicting the death penalty. This means the issue of the death penalty in this country is exactly as divisive as Roe V. Wade or gay marriage.
Into this arena steps Chief Justice John Roberts, who professed to be no fan of judicial activism during his confirmation hearings two years ago. In fact, here is what he had to say on the subject:
"To the extent that the term 'judicial activism' is used to describe unjustified intrusions by the judiciary into the realm of policy making, the criticism is well-founded," Roberts wrote, according to numerous press reports. "Judges must be constantly aware that their role, while important, is limited."
"It is not part of the judicial function to make the law" from the bench, Roberts said. A judge's job is "simply to decide cases before them according to the rule of law."
"At the same time, the [constitutional] Framers insulated the federal judiciary from popular pressure in order that the courts would be able to discharge their responsibility of interpreting the law and enforcing the limits the Constitution places on the political branches," he added. - LifeNews.com – August 3, 2005.
Ironically, this same Chief Justice authored the minority opinion in a case involving a man convicted of rape and murder. The fact subsequent DNA evidence cast doubt upon the man's conviction holds no sway with Roberts. The Chief Justice said that "it wasn't enough for the new evidence to cast doubt on the defendant's conviction; to grant relief, the evidence had to prove he 'was actually innocent.'"
Talk about judicial activism! Roberts' opinion flies in the face of more than 200 years of American juris prudence. In fact, the Chief Justice's opinion seems to embrace the Napoleonic code, which asserts that a defendant is presumed guilty until proven innocent.
There are many reasons to be opposed to the death penalty. A person could cite the inequitable way in which minorities are the largest recipients of capital punishment. A person could also look at the dearth of remedies should the state convict the wrong individual. From a Christian perspective, we can deplore the death penalty because it makes no allowances for the possibility of rehabilitation.
Roberts' opinion seems to consider none of these points. Rather, it is exactly the type of judicial activism he spoke out against before.
And so we have either a liar or a flip-flopper heading the highest court in the land.
Feeling good about the American legal system?