Lambda Legal is launching a public education campaign to defend the American tradition of 'judicial activism' and judges who are attacked by the right wing. It is called 'Judging Discrimination.' The announcement came on March 2, on the eve of a U.S. Senate hearing on 'Judicial Activism vs. Democracy.'
'These hearings, by their title alone are a fraud in the halls of Congress, they are designed to mislead people about the role of the judiciary, ' said Kevin Cathcart, Lambda's executive director.
Use of the term 'judicial activism' is an attempt to smear and intimidate judges who take their oath of office to the Constitution seriously.' He sees it as an 'attack on the very checks and balances of the three parts of our government.'
'To say that any rulings recognizing justice or equality for LGBT people or for others, are an attack on democracy. It is a fraud that we at Lambda Legal are determined to expose,' said Cathcart.
The campaign includes advertising, civics lessons at universities, 'monitoring the media for baseless claims of judicial activism,' and encouraging citizen action such as letter writing to elected officials and the media.
Margaret Russell, a professor at the Santa Clara University School of Law, said the Founding Fathers intended the courts to play a paramount role 'as guardians of rights.' She called the term judicial activism 'a weapon that people use when they don't like the results.'
The claim of 'let the people decide' is a 'misnomer' to Russell because the people spoke when the Constitution was written and chose to create an independent judiciary.
'When you are talking about constitutional law, all judges are of necessity activists, pretty much all of the time,' said Herman Schwartz, a professor at the Washington College of Law at American University. The broad language of the U.S. Constitution has stood the test of centuries through interpretation by the courts.
'In our system, judges have been given a very special role which insulates them, or is supposed to, against politics, partisan voices, and against what [Founding Father Alexander] Hamilton called 'the passing humors of the electorate.''
'The judiciary is then, in that sense, the odd fish in a democratic society,' said Schwartz. 'It is there to protect those values that are primarily endangered for a minority. A majority doesn't really need a judiciary to protect them, it's the minority that does.'
Many of the best-known Supreme Court decisions were seen at the time as judicial activism. Those include striking down segregation in education; establishing gender equality under the law; mandating that the redrawing of political boundaries reflect the principle of one-man, one-vote; and the recent decision striking down state sodomy laws.
The campaign initially is targeting five states—Arizona, Georgia, Idaho, South Carolina, and Texas—whose Senators sit on the Judiciary Committee. Cathcart said the goal is to 'reshape the public discussion so that judges can't be demonized or intimidated ... and to hold political leaders responsible when they try to twist this for partisan ... gain.'