One of the big concerns that conservatives constantly bring up in relation to gay marriage is the idea of “judicial activism.” Many assert that we are, right now, at the point where there are only two possible outcomes: courts will shove gay marriage down the throats of every state whether they like it or not, OR we amend the Constitution.
Are they right? How real is this fear of theirs? Some say that it’s only a smoke screen to hide bigotry. Others, including conservatives on this board who don’t have any moral objection to gay marriage, have expressed similar concerns about “activist judges.” So I’d like to put out the question to all you intelligent people: how much should we fear the courts, both in the gay marriage issue and in other issues?
“Judicial fiat” is a term effectively coined by religious fundamentalists as a boogeyman to trot out when courts make rulings favorable to gays.
It’s a term like “renegade, lawless mayor” is now being used in reference to Newsom, even though he is arguing that he is upholding a higher law.
Or “special rights” is used when legislation is debated which protects gays and lesbians from something bad, like discrimination or violence.
Even the term “shove down our throats” is frequently used by homophobes during debates about gays as a subtle (or not?) way of calling to mind oral rape, as though being asked not to use someone’s sexual orientation as a reason to fire them from their jobs is raping someone orally, like a gay “cocksucker” would do. Something like that.
The rhetoric of religious fundamentalists can quite creative and amusing.
What’s likely to happen is that courts are going to find that laws which prohibit same-sex marriage are unconstitutional, and people will say all these things in response. Not that it will do any good.
Also, “fiat” is a word used mostly in reference to acts in political systems outside the US, and thus, alien to it, and so a ruling which can be likened to “judicial fiat” makes it un-American. (“Fiat” sounds almost Italian, doesn’t it?)
You have to be so sensitive to the nuances of rhetoric, because these people are masters at rhetorical manipulation. There is already an existing, irrational prejudice among many good people; religious fundamentalists use words to give those people what sounds like a perfectly good reason to remain opposed or to reject a court’s ruling.
Okay, schplebordnik, I googled it - found it - yes, it can also be used in other ways, but it only confirms that it is a term employed in order to malign decisions unfavorable to your own position. Ergo, a judge rules that the Tsongas forest can be drilled for oil; environmentalists say, “judicial fiat.”
So the OP asks are fears of “judicial fiat” real? And I am arguing that in the context of gay marriage, I have found that those opposed to it have used it when discussing the Massachusetts decision. YMMV.
In fairness, the concept of “Judicial Fiat” as something to be feared was not coined by the Religious Right – it has been around ever since a Court first deduced something from the nuances of the Constitution or Precedent that resulted in something being ordered changed w/o prior legislation to the effect.
“Fiat”, Latin for “let this be so” (as in Fiat Lux, Let there be light, or Fiat voluntas tua, Thy will be done) does have a connotation, when dealing with public governeance, of a policy being adopted just “because we said so” (It is however widely accepted and tolerated in the area of monetary policy. Virtually every currency in the world is “Fiat money”: this piece of paper is one dollar because the Federal Reserve says it is so, it’s backed by nothing but faith and trust) It can be incurred by any of the 3 branches, but in the case of the USA it’s most often used to attack the Judiciary by “strict constructionists” who believe the courts should stick to the law as written and not go looking for nuance or “emergent” rights.
As to the fear of Judicial Fiat in the specific gay marriage issue, this is very interesting – it seems to presume that the Supreme Court of the United States would indeed find in favor of the gay citizens. I do not know how they can be so sure – SCOTUS could very well come down enforcing the constitutionality of the already-existing Defense Of Marriage Act (paraphrasing Justice Thomas: A law can be stupid and still be constitutional). Heck, they could make a ruling stating that the Federal Government can recognize whatever IT wants as a “marriage” and each state can do likewise, the one has no business forcing the others to follow suit, and the Full-Faith-And-Credit and Privileges-and-Immunities clauses don’t apply to marriage (Hey, a decision can be stupid and still be constitutional) . But no, the presumption is that the judges WILL impose gay marriage.
The thing I find ironic about this is that on the one hand you have an argument that, “judicial activism” in one state or another may have the effect of forcing all 50 plus the Feds to accept that state’s definition of marriage, and that this violates the principle of federalism by forcing dwellers in some states to live according to the values of others; but then OTOH the solution that is proposed is for ALL the states to surrender their power to define and regulate marriage to the Federal Constitution, so everyone has to live according to those values. So much for states’ rights, eh?
Yeah, but just google “judicial fiat”, and tell me who/what are talking about “judicial fiat” - let’s see, the judge in Alabama who was ordered by “judicial fiat” to remove the Ten Commandments, which violated Christians right to exercise their religion, then President by Judicial Fiat (relevant to your post), other discussions about judicial fiat, then arch-conservative Cal Thomas ironically discussing the process of getting to the Bush v. Gore decision as “judicial fiat” as to leftist judges making law from the bench (I guess both sides made charges of “judicial fiat”), and at the bottom of the page, Oak Park’s Republicans discussing Canada’s same-sex marriage by, you guessed it, “judicial fiat”.
If you want to understand the concern over judicial fiat, you need to concentrate on the process and ignore the outcome. I may completely agree with a certain SC decision, but if it’s arrived at by dubious reasoning, then it scares the hell out of me. We shouldn’t have the outcome of a SC decision to depend on the political leanings of the justices.
I don’t want judges to update the constitution. I want them to apply the articles and amendments as the writers and ratifiers intended them to be applied. We have a defined process for changing the Constitution. It’s a difficult thing to do, and it was intended to be so. I don’t want judges to usurp that authority for themselves.
And just for the record, the constructionist school of constitutional jurisprudence long predates (and transcends) any use the “religious right” might make of it. Use of terms like “these people” only serves to polarize the discussion.
I’m completely unqualified to contribute to this discussion, but it made me think of Sunday’s Candorville, which made me smile, so I thought I’d share.
Miranda v. Arizona and Edwards v. Arizona (note that if these cases had merely fashioned rules of evidence under the SC’s rule-making power, that would NOT be judicial fiat - but they didn’t, a fact only confirmed by Dickerson v. US)
If you had not limited your request to “recent” decisions, I might have mentioned the Dred Scott decision, in which Justice Taney created the “substantive due process” argument in explaining why a slave must be returned to his owner. A strict reading of the Constitution would not have reached that result. (Potentially, a strict reading might have invoked the takings clause, and required some sort of recompense, but that issue did not make it to the Court).
To add to Bricker’s list and Dewey’s, those cases where the U.S. Supreme Court ruled stated evidence obtained in violation of the Fourth Amendment is excluded. Nowhere in the Fourth Amendment is it stated evidence obtained in violation of its dictates must be excluded. These were nothing more than prophylatic rules used by the federal courts and the federal courts simply imposed them upon the states.
I have a question for the legal types: can a case in common law (i.e. the American legal system) be considered “judicial fiat” if it simply follows precedents laid out in previous cases? For example, I think Lawrence v. Texas was rather inevitable based on previous judicial rulings. One can argue about those previous rulings, but a court following precedent is still following in line with common law… or am I totally off-base?
After all, one could argue that the massive chunk of SCOTUS law rulings are judicial fiat based on Marbury v. Madison, no?
The federal version of the exclusion rule probably doesn’t qualify as “recent” - it was Weeks v. US, a 1914 case. The application of the exclusionary rule to the states counts: Mapp v. Ohio was decided in 1961.
Lawrence did NOT follow previous predecent: it explicitly overruled Bowers v. Hardwick, a case that declared precisely the opposite of Lawrence’s holding.
