The Very Definition of Modern Judicial Activism

We hear that term, “judicial activism,” quite often.  It is meant to refer to actions by a judge or panel of judges that create law, instead of doing what the courts are meant for, interpretation of the law.  Almost from the very moment of creation, American courts have engaged in judicial activism, and our history is rife with examples.  But in the last couple of weeks, we have witnessed one of the worst cases of judicial activism, right here in Texas.

The 5th Circuit Court of Appeals, which worked on this out of San Antonio, is where all the legal challenges to the redistricting maps drawn by the 82nd Legislature have gone.  The Texas House, Texas Senate, and Texas Congressional maps were all redrawn by the court; in the case of the Texas House map, the panel of judges were divided and a minority report was written by Judge Jerry Smith, who said that the majority opinion was an overreach and that it goes beyond what is “legal, practical, or fair.”

Texas Attorney General Greg Abbott reacted swiftly (covered in this post by Michael Quinn Sullivan).  Last Wednesday, just as staff were fleeing the government buildings in downtown Austin for a Thanksgiving break from the madness, the court refused to stay the House and Senate maps.  They also released their Congressional map, taking their activism to a brand-new level, decimating Republican districts and drawing three of the four new seats as Democratic ones.  All in the name of the Voting Rights Act, right?  Abbott requested a stay on that map as well, and was refused on Friday when the holiday-weekend deadline for challenges came.

Now, Abbott has taken this to the U.S. Supreme Court, requesting an emergency stay on the Texas House map before candidate filing begins on Monday.  Abbott has used Judge Smith’s dissent heavily in his request, citing Smith’s statement that “the federal courts may not order the creation of majority-minority districts unless necessary to remedy a violation of federal law.”  Justice Antonin Scalia will be reviewing the request.

This is a perfect time for the U.S. Supreme Court to take a real stand against judicial activism; conservative judges are often vetted on their stance on this very issue after all.  What the 5th Circuit Court did goes beyond mere interpretation and implementation of the Voting Rights Act; they chose to set policy, totally eradicating what the Legislature accomplished.  This process is meant to be done through an elected, representative branch of government, not the federal court system.  The 5th Circuit Court should be made to understand their precise role in the process, and made to back off this egregious case of judicial activism.

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