To: "FAPT fapt@yahoogroups"
Subject: HALF OF U.S. SEES 'JUDICIAL
Date: Sat, 1 Oct 2005 01:27:25 -0400
HALF OF U.S. SEES
‘JUDICIAL ACTIVISM CRISIS’
ABA Journal Survey Results Surprise
Some Legal Experts
BY MARTHA NEIL
More than half of Americans are angry
and disappointed with the nation’s
judiciary, a new survey done for the
ABA Journal eReport shows.
A majority of the survey respondents
agreed with statements that "judicial
activism" has reached the crisis
stage, and that judges who ignore
voters’ values should be impeached.
Nearly half agreed with a congressman
who said judges are "arrogant,
out-of-control and unaccountable."
The survey results surprised some
legal experts with the extent of dissatisfaction
shown toward the judiciary. "These
are surprisingly large numbers,"
says Mark V. Tushnet, a constitutional
law professor at Georgetown University
Law Center in Washington, D.C.
"These results are simply scary,"
adds Charles G. Geyh, a constitutional
law professor at Indiana University
School of Law in Bloomington.
The Opinion Research Corp. conducted
the survey, calling 1,016 adults throughout
the country in early September. Participants
included 505 men and 511 women aged
18 or older. Due to the effects of
Hurricane Katrina, residents of Alabama,
Louisiana and Mississippi were not
Calls were made to a random sample
of American households. Those surveyed
were asked questions about their age
and education levels, and were asked
to give one of six answers—strongly
agree, somewhat agree, neither agree
nor disagree, somewhat disagree, strongly
disagree or don’t know—in response
to public statements criticizing the
Fifty-six percent of the respondents
strongly or somewhat agreed with the
opinions expressed in each of two
A U.S. congressman has said, "Judicial
activism … seems to have reached a
crisis. Judges routinely overrule
the will of the people, invent new
rights and ignore traditional morality."
(Twenty-nine percent strongly agreed
and 27 percent somewhat agreed.)
A state governor has said that court
opinions should be in line with voters’
values, and judges who repeatedly
ignore those values should be impeached.
(Twenty-eight percent strongly agreed
and 28 percent somewhat agreed.)
Forty-six percent strongly or somewhat
agreed with the opinion expressed
in a third statement:
A U.S. congressman has called judges
arrogant, out-of-control and unaccountable.
(Twenty-one percent strongly agreed
and 25 percent somewhat agreed.)
Among the respondents, younger adults
were less likely than older adults
to agree with all three statements.
Those with a college education were
more likely to disagree with the statements
than high school graduates.
Only 30 percent of respondents somewhat
or strongly disagreed with the first
statement and 32 percent felt the
same way about the second statement.
The most disagreement was reflected
in the responses to the third statement,
with which 38 percent took issue.
Two percent to 3 percent responded
"don’t know," and the remainder
of the respondents neither agreed
nor disagreed with the statements.
The margin of error for the survey
is plus or minus 3 percentage points,
at the 95 percent confidence level.
Opinion Research Corp. says survey
results were "weighted by age,
sex, geographic region and race to
ensure reliable and accurate representation
of the total population."
The congressman referenced in the
first question is Rep. Lamar Smith,
R-Texas, who made the comment at an
April 2005 rally in Washington, D.C.
The governor in the second question
is Matt Blunt, a Missouri Republican,
who reportedly made the comment during
an interview with a religious publication
in May 2005. The congressman in the
third question is House Majority Leader
Tom DeLay of Texas, who made the comment
in March 2005.
Several legal scholars responding
to the survey results were startled
by the numbers.
Georgetown’s Tushnet says he didn’t
realize the level of dissatisfaction
was so high. "What I had thought
was the case was that there was a
significantly higher residue of general
respect for the courts," he says.
"And these numbers suggest that
that’s not true."
Geyh of Indiana University says the
survey suggests "a trajectory"
upward in the number of people unhappy
with the American judiciary—apparently
simply because these critics disagree
with the law that judges have a duty
The idea that judges should "somehow
follow the voters’ views really reflects
a fundamental misunderstanding of
what judges are supposed to do,"
he continues. "They should only
be criticized when they ignore the
law and start infusing their own values
into the law regardless of the law."
But one legal scholar with an alternative
viewpoint is not surprised. The survey
results reflect the reality that "there
is a lot of judicial activism under
any definition," says John O.
McGinnis, a professor at Northwestern
University School of Law in Chicago.
"This problem has been coming
for a very long time," he says.
"I think, for most of [the past]
century, the idea of the Constitution
as a document that should be interpreted
formally and without regard to the
judge’s own values has been under
attack." Judges today also do
not give due deference to legislative
decisions, and too frequently strike
down statutory law, he adds.
Part of the problem, too, McGinnis
believes, is that legislators on both
sides of the aisle are conducting
judicial confirmation hearings as
though the candidates’ personal political
views are relevant to their role on
the bench. "Everyone thinks that’s
what [judges] do, and they just want
their own values" to be reflected
by the judiciary, McGinnis says.
In a written statement, Rep. Smith
said judges today "seem to be
promoters of a partisan agenda, not
wise teachers relying on established
law." As a co-equal branch of
the federal government, however, the
judiciary is subject to congressional
oversight as part of our system of
checks and balances, he continued.
So "Congress is right to evaluate
judges when they behave like unelected
superlegislators who want to implement
their own social agenda."
Spokespersons for Blunt and DeLay
did not respond to requests for comment.
The survey figures did not catch ABA
President Michael S. Greco by surprise,
either. Instead, he views the results
as further confirmation of the need
for new ABA programs now under way
to educate the public about how American
government works, and the role played
by judges in a democratic society.
Judicial independence is also the
subject of three feature articles
in the October issue of the ABA Journal.
One of Greco’s first actions after
taking office in August was to appoint
a Commission on Civic Education and
the Separation of Powers. In his President’s
Message in the October Journal, Greco
said the commission was created to
address what he terms an "alarming
increase in rhetorical and physical
attacks on the judiciary." The
bipartisan commission is intended
to educate Americans about the role
of an independent judiciary in U.S.
A poll commissioned by the ABA in
July from Harris Interactive showed
a "shocking" 40 percent
of respondents could not correctly
identify the three branches of government,
The commission will help rectify this
situation, Greco says, in two ways:
First, it will "find out why
it is that half the people polled
don’t know how their government works."
Second, it will work with teachers’
groups to address "this sorry
state of civic education."
Greco hopes to bring lawyers throughout
the country into the nation’s schools
on Law Day as part of a larger program
of civic education about the separation
of powers and the role of the judiciary.
"This is in the preliminary stages,
but the thought is, around Law Day,
have a program that is carried on
C-Span and perhaps beamed into every
school in the country."
Held on May 1 each year, Law Day is
recognized as a time to focus on how
the rule of law makes democracy possible.
Robert H. Rawson Jr., a Cleveland
lawyer who chairs the commission,
emphasizes that these educational
efforts will be nonpartisan. "Our
objective is not to get into the politics
of judicial selection, but rather
to fill what appears to be a gap in
general public understanding of the
fundamental role of a judge,"
he says, and "restore what needs
restoring—the confidence and trust
of the American public in the judiciary."
The commission has two honorary co-chairs:
retiring U.S. Supreme Court Justice
Sandra Day O’Connor and former U.S.
Sen. Bill Bradley of New Jersey.
The October ABA Journal includes three
features on judicial independence:
A roundtable discussion by legal experts
on recent attacks on the judicial
A look at hot-button cases that are
raising the hackles of the American
A report on how Serbia is addressing
issues of judicial independence and
the rule of law in its effort to enter
the European Union.