Thursday, October 19, 2006

Naked Judicial Elitism on the Washington Supreme Court

In the Seattle Times, State Supreme Court Justice Susan Owens elucidates her respect for the wisdom of the people to choose their government, and by extension, democracy itself.

Johnson and other critics say Owens' position in both cases is proof that she is a liberal "activist" judge who is too willing to decide policy matters that should be left to the Legislature.

But Owens suggests there are times the court has to play such a role.

"The Legislature is really behind the times socially," she said during a recent interview with editorial writers at the Yakima Herald-Republic.


The Legislature defines where we are socially, because they represent the "social" body that is our entire electorate. Who is she to say who's "ahead"” or "“behind"” that? And even if we are "behind,"” that'’s explicitly not the role of the judiciary to make those changes. This is tyranny of the elite stripped bare for all to see.

It's ironic that liberals are wailing and gnashing their teeth over conservatives "buying" seats on the Supreme Court, just because they dare to fund and run a competitive campaign. Do you think Owens' financial support from gay-activist groups had anything to do with her extra-legal votes in In re L.B. or Andersen v. King County? Nah... Not that I'm blind to the probable influence the BIAW would have on Johnson (among many reasons I think judges should be appointed), but at least he's not openly advocating judicial policy making. And frankly, I contend that the BIAW and Johnson's other bi-partisan supporters (as opposed to Owens' exlcusively liberal ones) support him because they know that the statutes as writen and the popularly elected legislatures that enact them are already on their side. All they need is a Justice who will follow the law instead of her predetermined policy predilictions.

The Post-Intelligencer calls the "legislating from the bench" attack a "slur" that threatens a "fair, impartial and independent judicial system." But Justice Owens is legislating from the bench - by her own admission. And you can't be "fair" or "impartial" if that's what you're doing. What's more, it's disturbing to see the P-I so ignorant of the larger danger of upsetting the careful balance of our government's seperated powers. A Judicial Superlegislature does nothing to protect our rights.

Justice Owens openly declares that she thinks it's perfectly appropriate for a Justice to make policy from the bench, when she and she alone decides where we should be "socially." For that reason alone, she's unsuited to be there.


Cato said...

Another way to describe Owens' vote against the Gay Marriage Ban is "judicial review". When a law passed by the legislature is unconstitutional, it is appropriate and necessary for the Supreme Court to strike it down. That isn't legislating from the bench, that's separation of powers at work.

The answer to whether a court decision is "legislating from the bench" or not can only be answered by interpreting the constitution.

So show me a decision in which she has misinterpreted the constitution, not a quote on what she personally thinks of the legislature.

Orrin Johnson said...

I think Justice Johnson's concurrance in Andersen does a very good job of pointing to the Constitutional misinterpretation. In L.B., she and her 6 compatriots simply created a new classification of parent out of whole cloth. And her assertion that the state Constitution's property protections don't actually protect property in HTK Mgmt., 155 Wn.2d 612 (2005) (the "sinking ship" parking garage case) was plainly wrong.

I'm fine striking down unconstitutional laws. That's her duty. It's upholding unconstitutional laws, or striking down those that ARE Constitutional, just because she thinks either the Constitution or the statute is "really behind the times socially" - that's what offends me. And that is exactly what she has openly declared she intends to keep on doing.

PubliusRex said...

Cato - Are you willing to admit that if this sort of thinking plays any role in her jurisprudence, it's totally inappropriate?

I can't see that her impression on where the law or legislature is in relation to the "times" has anything to do with the discharge of her limited, one-branch specific duties.

Afterall, it's a core tenet of the Federalist Society that "it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

This sort of language is irresponsible in any case. The perception that the judiciary is respecting its limited role, i.e. deciding cases, is fundamental to the other two branches responding to the judiciary's pronouncements. Statements like these undermine the credibility of the court, even if they don't doctrinally creep into her opinion. A responsible public official measures her words when criticizing the other branches, qua branches.

Anonymous said...

I suggest a reading of Pat Buchanan's latest article on judicial tyranny: