Combating Judicial Political Activism

Published November 15, 2004

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John Morganelli, District Attorney for Northampton County, Pa., probably had no idea what he was in for last week when his office appeared before Judge Leonard Zito for the conviction and sentencing of 27 individuals accused of using false and stolen social security numbers.

Morganelli’s investigators had worked for months to prosecute the group, 14 of which had not simply used false social security numbers, but had stolen and used the social security numbers of law-abiding people.

But although every one of the defendants pleaded guilty, Judge Zito refused to impose any period of incarceration, nor did he fine the defendants. Zito based his decision on the fact that the defendants were all illegal aliens, remarking that they should never have been arrested in the first place because the men committed the crimes “strictly for the purpose of working.”

Zito’s decision not to administer the law not only demonstrates how politicized the bench has become in recent years, but is another example of a wave of judicial activism in which judges have used their positions not just to interpret and apply existing law, but, according to many critics, to legislate from the bench. The most high profile example of this has been the Massachusetts Supreme Court rulings on gay marriage, which in effect legalized unions the legislature had not.

In fact, the wide passing of ballot initiatives banning gay marriage in states across the country on Nov. 2 is believed by many observers to be, at least in part, an expression of the public's lack of confidence in the courts.

This lack of confidence is based on the hard reality that there are now certain courts that have a reputation for “interpreting” the law in a way that is reliable and favorable to certain groups. This is one of the reasons that opponents of the Pledge of Allegiance’s reference to God went to a court within the 9th Circuit when they brought an action against schools to strike god from the Pledge on 1st Amendment grounds.

Citizens, however, do have some tools to combat such political activism on the bench. In almost all states, any judge who states on the record that he or she refuses to follow prevailing law violates a code of judicial conduct. This can result in sanction and can, in particularly egregious cases, removal from the bench.

A judge with an agenda, though, usually has developed ways to protect himself. Several years ago, a judge hearing a string of abortion protest cases was fond of saying “The laws of the State of New York do not apply here, my law applies here,” but directing the court stenographer to turn off her equipment first.

Seeking a writ of mandamus (search), which compels action by an official, is also something that an ordinary citizen can attempt, though the circumstances in which a judge can be compelled to make a desired decision are extremely limited if they exist at all. Aside from being overturned on appeal, judges do their jobs with surprisingly few checks on the decisions they make, and appellate courts (search) give judges like Northampton County’s Zito wide latitude in sentencing.

This is one of the main reasons that the ballot initiative (search) has taken off in recent years. In days after Nov. 2, every major media outlet discussed the influence of gay marriage ban initiatives (search) on voter turnout. People, it seems, are hungry to create the laws at the voting booth that their legislatures will not, and are concerned about how the courts will fill any void or gap in the law.

By Monday morning of this week, Judge Zito’s sentencing decision was being spoken of among at least one group of men looking for work in North Hampton. Let's hope they won't "interpret" his decision as a ready-made defense for the crime of identity theft.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He is the author of the soon to be published, "The New Immigration Law and Practice."

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