Court of Appeals judge speaks about judicial activism

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October 25, 2010

10:27 PM

Tenth Circuit Court of Appeals Judge Deanell Reece Tacha spoke at the College of William and Mary’s Marshall-Wythe School of Law yesterday about the character of the American judiciary. Her lecture, entitled “The Role of the Judge in Times of Economic and Cultural Turmoil,” was sponsored by the Federalist Society.

Tacha was appointed by President Ronald Reagan to the United States 10th Circuit Court of Appeals in 1985, but as she told the approximately 50 students who attended her lecture, judges should not be pigeonholed according to what administration appointed them to the bench.

“I have been dogged by the question, ‘What is her label?’” she said. “These predilections [are] based on stereotypes. The big wonderful surprise is the integrity and intellectual honesty of your colleagues, no matter who appointed you.”

According to Tacha, judges operate under three principles, regardless of their personal political affiliations. While not explicitly outlined by the U.S. Constitution, she said it has become generally accepted that the judiciary should be independent from the other two branches of government, limit its rulings and exhibit neutrality and strict obedience to the law. These guidelines are essential to ensuring justice in American courts.

Tacha explained that judges exercise restraint in their rulings in that they are limited to the facts of each particular case and that, in her view, they should not seek to include their personal ideas in their interpretations, a practice known as judicial activism.

“It seems to me that word has been so overused,” she said. “But it refers to the worry that judges have gone beyond the role given them by the framers.”

The most important quality of the judiciary, in Tacha’s opinion, is the third: its neutrality. In her travels to third-world countries, she has learned that it is also the one quality that most distinguishes the American court system.

“Do you know how rare that is in this world? That we are impartial, predictable and adhere to the rule of law?” she said. “It is so hard for developing countries to understand that we resolve our controversies in open court, with open opinions.”

Tacha said that in various periods of the nation’s history, each of the three principles was employed to a different extent. Cases from the Civil War and Reconstruction eras, for example, tended to emphasize restraint, which resulted in the upholding of discriminatory laws.

“Occasionally the courts get it wrong,” Tacha said. “By and large, when you look at which of those three attributes are at work, one of the other of those values came to the forefront in the work of the courts.”

To understand the most important modern court cases, Tacha advised law students to examine on which of the three principles judges are relying most. She cited recent rulings regarding economic bailouts and the suspension of the writ of habeas corpus following the terrorist attacks of Sept. 11, 2001.

The role of the judge in times of economic and cultural turmoil, then, according to Tacha, is the same as his or her role throughout history — to uphold the laws impartially and in accordance with the Constitution.

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