The Texas Tornado, Mark Bennett, posits that every judicial decision involves “interpretation”, a word vilified of late as the tool of evil activist judges bent on legislating from the bench.  Judges shouldn’t “make law,” unhappy neo-cons screech, which Bennett “interprets” to mean that the “interpretations of the law gore the right-wing ox.”

We all agree that law needs interpretation. It rarely springs fully-formed from the legislature, so that its meaning is clear to all who read it. Even the U.S. Constitution needs interpretation — it doesn’t explicitly address every conceivable situation.

Obviously, this is true.  The enactment of a law is intended to be subject to judicial interpretation as it’s applied to the zillions of potential circumstances that arise afterward.  But for the need for interpretation, we would have grocery clerks sitting on the big bench rather than judges.  Who better to blindly apply law without introducing any thought at all?

To a large extent, the “activist” epithet, meant to be said with a snarl, much like that used when uttering the word “liberal”, is merely a vote against a particular outcome.  Don’t like the decision?  Then the judge is an “activist”.  Love it?  Then the judge is brilliant.  Whether they are “making law” doesn’t matter.  It’s whether you like the law they are making that counts.

But there are some lines beyond which judges should not cross, yet sometimes do, in the performance of their duties.  And this line exists regardless of how they rule, notwithstanding our bias in favor of decisions we like.  One such line is binding precedent, the bugaboo of the simple mind, which constrains a judge to adhere to the decisions of superior courts on a specific area of law.  While a lower court judge may note his disagreement with the precedent, and may search for a way around it, he is still constrained to follow it.  If not, we end up with totally incoherent law leaving everyone clueless as to how conduct will be treated.

Another line is the limits of statutory construction.  The first level of interpretation is the actual language of the law under scrutiny.  The words do mean something, and there can be no valid interpretation that ignores the language.  While the meaning of words is often the subject of dispute, and properly interpreted, judges cannot simply decide to read language out of a statute or ignore words when there is no question as to their meaning.

The bottom line of improper interpretation is when judges decide to search for ways to effectuate a policy choice that was neither the purpose of a law nor within the language of a law.  One of the most hated precepts is that the law does not provide a cure for all things that people can do to each other.  People believe that there has to be a law that makes bad things unlawful.  And if there isn’t on its surface, then judges should make it so.  After all, if conduct is bad, then it must be punished.  The Lori Drew case is a perfect example of this phenomenon.

The irony of judicial activism, as its been commonly understood by the public via disingenuous politicians, is that it’s a one way street, with liberal judges ramming their agenda down the throats of good people.  As Bennett says, this “is ignorant right-wing hogwash.”  They invented the slur and now own it to the exclusion of everyone else.  But I see unjustifiable activism happening far more frequently on the side of finding exceptions to clear mandates and prohibitions that are designed to achieve the goal of being “tough on crime.”  No one is cursing out these judges because they like the outcome.

So let’s stop confusing judges interpreting the law to apply to varying circumstances with “making law,” and let’s stop confusing outcomes we dislike with judicial activism.  This entire issue has been swallowed by mindless political expediency, concealing the problem when judges exceed their legitimate authority based upon whose ox is gored. 

The outcome isn’t the point.  Interpretation is either within the scope of judicial propriety or not, and it’s no better or worse because we don’t like a judge’s decision.