Judges worry about waning respect for courts

Sunday, July 3, 2005

The outgoing state chief justice said he doesn't believe activist judges exist.

JEFFERSON CITY, Mo. -- A Latin inscription on the facade of the Missouri Supreme Court Building translates into English as "To speak the law but not to make it."

New state Chief Justice Michael Wolff said that simple doctrine on the role of the judiciary and the limits of its authority is one judges take to heart.

"I believe that in Missouri we are quite well-grounded in following the law," Wolff said.

Yet in the political climate of the state and nation in recent years, so-called "activist judges" who allegedly substitute their own ideologies in place of the law have been a popular target of attacks, particularly by conservative groups.

Judge Ronnie White, whom Wolff succeeded Friday as chief justice, said he doesn't believe activist judges exist and that is simply a label people use when judges don't provide the outcome they're seeking without regard to whether a ruling is constitutionally and legally sound.

"If I'm ruling in favor of what you believe in, then I'm OK," White said. "But if I'm ruling opposite to that, then I'm called an activist."

Kerry Messer, president of the conservative Missouri Family Network, has a different take on activism than Wolff and White.

"I understand their defense of the court and wouldn't expect them to frame it any other way," Messer said. "I'm also not surprised they don't see what I believe is true judicial activism."

Messer said true activism is when courts rule to achieve a particular outcome that is contrary to the letter and intent of the law and established precedent. Messer agreed, however, that disgruntled groups -- conservative and liberal -- too often complain of activism where none exists.

A part of the system

That people are going to be upset with court rulings is part of the nature of the system, Wolff said. In any contested case, half of the litigants are going to lose. And Wolff estimates that about half of prevailing parties walk away at least somewhat disappointed because the court didn't give them everything they wanted.

"You've got a system where maybe 75 percent of your customers aren't very happy," Wolff said. "But overall I think the people see the judiciary as something where they can get the law applied in an impartial fashion and a prompt fashion."

However, Wolff is concerned that the current wave of political attacks is undermining public trust in judges.

The national debate over the role of the judiciary is about to heat up due to U.S. Supreme Court Justice Sandra Day O'Connor's resignation on Friday. O'Connor, a moderate, has been a crucial swing vote on the court. If President George W. Bush nominates a conservative to replace her, it could lead to the possible reversal of a number of recent decisions in which O'Connor sided with the court's liberal wing, including one last week in which the court ruled 5-4 that displays of the Ten Commandments on public property are unconstitutional in some instances.

U.S. Sen. Jim Talent, R-Mo., said "consistent application of jurisprudence" is among the criteria by which he will assess the president's nominee during confirmation proceedings.

"My hope is that the Senate will proceed expeditiously to a fair hearing and an up or down vote on his nominee," Talent said. "I also hope that everyone will treat the president's nominee with respect and avoid personal attacks during the confirmation process."

However, the confirmation process could produce a bitter fight over the ideological direction of the court. Anticipating that at least one vacancy on the court would open this summer, interest groups across the political spectrum have been building war chests to finance campaigns to support or block Bush's nominees.

The death penalty

Although he perceives more activism at the federal level, state Sen. Jason Crowell, R-Cape Girardeau, said that in his view the most glaring example of judicial activism among Missouri courts has been in relation to capital punishment.

"I think you've seen a clear slant on the Missouri judiciary on the death penalty," Crowell said.

After Democratic appointees claimed a majority on the Missouri Supreme Court in 2002, a string of decisions overturning capital cases followed in which the court divided along partisan lines.

In the most far reaching of those rulings, the court declared the death sentence unconstitutional for juvenile offenders despite a standing U.S. Supreme Court precedent to the contrary. Earlier this year, the federal high court narrowly reversed course and used the Missouri case to abolish capital punishment for juveniles nationwide.

Aside from the death penalty cases, Crowell, a member of the Senate Judiciary Committee, said it is difficult to point to much evidence of judicial overreaching by Missouri judges.

Crowell is concerned, however, as to how the court will rule on some of the policies championed by the GOP-led legislature and Republican Gov. Matt Blunt, including new restrictions on civil lawsuits and workers' compensation claims. That the court might declare Missouri's system for funding public school unconstitutional and attempt to force lawmakers to raise taxes as a remedy is also a fear, Crowell said.

Wolff noted that the Missouri Constitution explicitly gives the judiciary to power to review the validity of state laws.

"It's a tricky proposition," Wolff said. "Government must meet its obligations to the citizens as the constitution provides. But I think courts are also inclined to defer to the legislature and the political process."


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