Activist Judges

—-is a phrase for losers.

Senate leader Ron Richard is whining about “activist judges” on the Missouri Supreme Court who have ruled the Senate violated the Missouri Constitution in overriding Governor Nixon’s veto last year of a bill that makes Missouri one of the least sympathetic states in the nation for people who lose their jobs.

Richard accuses the majority judges in the 4-3 opinion of “overstepping…constitutional authority” in ruling that it was the Senate that overstepped its constitutional authority.

It is easy and all too common for losers to throw around the kind of charges against the court system that Richard throws around.  But sorting out what the constitution means is not done recklessly by the court system and a reading of the majority and minority opinions outlines that difficulty.  The 4-3 vote that takes 28 pages to explain is indicative of the struggle courts go through to determine the meaning of the law.

Implying that the outcome is the result of “activist judges” is a cheap shot easily fired and easily accepted by a general public that seldom cares, as it should, about the difficulty of establishing the specific parameters that a general law originates.  Legal opinions are hardly bodice-busting stories of passion that rivet readers to the printed page, but reading them is something more of us should do especially when the losers blame others for their faults.

Here’s what happened:

In 2015, Richard’s party that controls the legislature passed House Bill 150 that says a person who loses his or her job when the unemployment rate is low will only get thirteen weeks of unemployment benefits.  If, however, that person has the good fortune to lose his or her job when the rate is above six percent, the state will provide twenty weeks of help.  Either way, the legislature wants Missouri to be among the chintziest states when it comes to paying a paltry amount of unemployment benefits.  Governor Nixon notes our benefits rank 43rd out of all fifty states.  Even a return to twenty weeks of benefits puts Missouri a full six weeks behind the national average.

But being behind the national average is not an uncomfortable positions for Missouri’s legislators.

We have wandered.

The legislature passed the bill early enough (April 21) that it would have a chance to override a Nixon veto if there was one.  The legislature went to great effort a few years ago to enact such a system.  It wanted time to override budget vetoes and withholdings before the start of a new fiscal year on July 1.

Nixon vetoed HB150 on May 5.  The House overrode the veto on the 12th.  But the Senate frittered away the last three days of the session and didn’t take an override vote.   But during the September session that is held annually to consider overrides of bills vetoed after the regular session or vetoed too late to be overridden in the regular session, it overrode the HB150 veto.

The majority of the court has ruled that the Senate lacked the constitutional authority to override the veto in September.  The three judge-minority reads the same section of the state constitution in a different light.

This fact is unchallenged:  The court would not have been put in this position if the Senate had done its job in the closing days of the 2015 session.  Senate leaders—Richard and Majority Floor Leader Mike Kehoe–conveniently overlook that little issue in criticizing the court for doing what it has had to do.  And what it had to do is—something.

Richard also fumes that the court “tramples on the respect for a co-equal branch of government demanded by our constitution,” and he continues, “The legislature is the voice of the people of Missouri and with today’s decision the Court has substitute its own voice for theirs.”

That kind of talk is oh, so tiresome.  On one hand he speaks of a co-equal government and in the next line he suggests that the legislature should not be challenged by one of those co-equal branches.  Courts are valuable things to have when legislatures move from being the “voice of the people” to being “the voice of SOME people.”

“Activist judges” is a phrase for those who, in the end, have failed to justify their positions within the law. Their legal arguments ultimately are unable to convince four people of their correctness. In fact, the cases going before the Missouri Supreme Court often involve far more than seven men and women in Jefferson City.  By the time those four “activists” make the apparently final ruling,  other “activist” judges have evaluated an issue on the basis of law all the way back to a municipal or circuit judge, perhaps.

But the case might not have begun there.  The evaluation of the issue—under the law—might have started with a city council vote in which “activist” council members, maybe as many as two, make a policy.  Or perhaps it began with legislators passing a bill, as in this case. Perhaps the issue began with one “activist” who financed a petition effort approved by voters that gave him or her a preferential right or privilege not to be enjoyed by others who are in our system equal under the law.

In each instance, the issue has been reviewed, weighed, and decided.  Arguments and counter-arguments have shaped the issue at increasingly higher levels of scrutiny.

Perhaps it is time for judges accused of being “activist judges” to say something.  Maybe it should be something like:

Thank you for the compliment.  Thank you for recognizing the role we play in our political system.  Thank you for recognizing that we are called upon to decide—to act. We have done what you demanded that we do–to take action. The alternative to taking action is to passively accept without argument a position placed before us and we realize that is not what our justice system is about. Although we might differ among ourselves, we have acted. In a nation that places faith in the judgment of a majority, we have kept that faith. Too bad it didn’t go your way.

Judges are called upon to be activists.  Somebody has to decide.  A judge who won’t act doesn’t meet the responsibility of the title.  So it is that the cheaply-uttered epithet “activist judges” is—unfortunately for those who readily hurl it after their own failures to justify their attitudes and positions—a compliment to those who have done the job we expect them to do.

There are plenty of countries where neither citizens nor judges are allowed to be activists.  You don’t want to live there.

Let me know what you think......