- The Washington Times - Wednesday, November 29, 2000

Even though Thanksgiving Day is behind us, Americans owe a debt of gratitude to the Florida Supreme Court. Its Nov. 21 hostile takeover of Florida election law did more to expose freedom-busting judicial activism than a steady stream of columns, seminars, documentaries, courses and books ever could.

The sneering liberal media and arrogant legal establishment have tried for years to pretend the problem does not exist, The New York Times saying the label is just a "hazy slur" and the National Law Journal dismissing it as mere "hyperbole." Attorney General Janet Reno says criticizing judicial activism threatens judicial independence and leftist law professor David Kairys scoffs that judicial activism "is in the eye of the beholder." But now the gig is up; the Florida Supreme Court's decision rewriting the legislature's election statute cut through the cover-up and spin, exposing judicial activism as perhaps the biggest threat to self-government and ordered liberty.

Judicial activism is indeed real and not at all tough to identify. Sen. Sam Ervin once defined a judicial activist as "a judge who interprets the Constitution to mean what it would have said if he instead of the Founding Fathers had written it." As the Florida Supreme Court demonstrated, the activist similarly interprets a statute to mean what it would have said if he instead of the legislature had written it. Just as former Chief Justice Charles Evans Hughes said that the Constitution "is whatever the judges say it is," the Florida Supreme Court proved that statutes are whatever the judges say they are. On a September 1997 episode of ABC's "The Practice," Ed Asner's judicial character asked, "Do you really think I should leave legislative policy to the legislature?" The Florida Supreme Court asked the same question and unanimously answered, "Nah."

The Florida legislature's statute required county election boards to send all certified returns, including those from manual recounts, to the state election board by 5 p.m. on the seventh day following an election. The Florida Supreme Court's statute allowed county boards to submit returns by 5 p.m. on the 19th day after the election. The legislature's statute required the state board to ignore election returns submitted after that deadline. The court's statute prohibits the state board from doing so. The legislature's statute does not set a separate deadline for manual recounts. The Florida Supreme Court's statute created one. As George W. Bush put it, the court "rewrote the law."

Judicial activism cannot be excused as mere "interpretation." Interpreting a statute, as even Black's Law Dictionary confirms, involves determining what a statute already means. Judicial activism, in contrast, involves giving a statute entirely new meaning. Since saying what a statute means is the same as saying what a statute is, judicial activism is legislating from the bench.

The Florida Supreme Court clearly believes it has the power to do just that. Its discussion of "general principles" opens by asserting that "this Court" and not "statutory provisions" determines the conduct of Florida elections. Even more revealing are the court's closing paragraphs. Piously declaring its "reluctance to rewrite the Florida Election Code," the court concluded that if it were to "rule more expansively" it would "result in this Court substantially rewriting the [statute]. We leave that matter to the… Legislature." The court can rule as expansively as it wishes, rewrite statutes as much as it likes, and the legislature has any legislating left at all only by the court's benevolence.

The court seems blissfully unaware that the people of Florida have already prohibited not just substantial judicial legislation, or reluctant judicial legislation, but all judicial legislation. Article III of the Florida Constitution states that the "legislative power of the state shall be vested in a legislature of the State of Florida." And Article VI reads that "no person belonging to one branch shall exercise any powers appertaining to either of the other branches." The Florida Supreme Court violated this directive.

America's Founders considered it an impeachable offense for judges to exercise power they do not lawfully possess. James Madison said this practice would make the Constitution illegitimate. In his 1857 dissent from the Supreme Court's infamous 1857 decision in Dred Scott vs. Sanford, Justice Benjamin Curtis said judicial activism would result in "a Government which is merely… an exponent of the individual political opinions of [judges]."

President Lincoln warned in his first inaugural address that judicial activism would mean "the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of [judges]." The Florida Supreme Court is people's exhibit A.

Thomas L. Jipping, J.D., is director of the Free Congress Foundation's Center for Law & Democracy.

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