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Host Gary Eichten and Suzanna Sherry, law professor at Vanderbilt University, discuss "judicial activism," and how judges decide what is constitutional.

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(00:00:10) And good morning. Welcome to midday on Minnesota Public Radio. I'm Gary eichten glad you could join us Minnesota Senate Judiciary Committee today is scheduled to take up a proposed amendment to the state constitution one that would essentially ban same-sex marriage. The proposed amendment has already passed the Minnesota house and But ultimately clears the state senate. It would appear on the November election ballot supporters of the amendment say it's needed because judges might thumb their nose at the legislature and the public misread the Constitution overturn the state law which bans same-sex marriages and decide to impose their definition of marriage on minnesotans. Such judicial behavior is often called judicial activism generally in a pejorative sense during this our midday. We thought we would take a closer look at what the term actually means how does and activist judge if you will differ from a neutral judge. Can the same judge be both should a judge take public opinion into account when he or she tries to reach a decision. Those are some of the fundamental legal issues that we're going to be talking about this hour with Suzanna Sherry, and as always we invite you to join our conversation Suzanna. Sherry is a former University of Minnesota law professor and frequent. Midday guest who now teaches law at Vanderbilt University in Nashville. If you'd like to join our conversation, give us a call here. Our Twin City area number is 6512276 thousand 6512276 thousand our toll free number is 1-800-218-4243 few you can submit your question online. Just go to our website, Minnesota Public Radio. Dot org and click on send a question faster Sherry. Thanks for joining us. Good talking with you again. Been a long time good to talk to you. Well, alright. First of all, is there an accepted definition in the legal world? Is there an accepted definition of activist judge? Well, it depends on who you ask basically an activist judges a judge that does something that you personally don't like so it's the definition of activism is in the eye of the beholder liberals accuse the rehnquist court of being activists when it strikes down popular liberal statutes and conservatives accused us Massachusetts Supreme Judicial Court Court of being activists when it strikes down the ban on gay marriage and it really depends on your perspective. So it what it amounts to is people who are upset with a given decision say these judges have read things into the law that aren't there and that's how they Come activist judges. Well, it's not just reading things into the law. It is activism is designed. I think to focus attention. The charge of activism is designed to focus attention away from whether the judge's decision was right, which I think there can be arguments about and instead on whether the judge should be making such a decision at all because to say that a judge is activist is essentially to say that a judge is doing something that judges are not supposed to do. What does a I don't know a regular or a neutral judge. How do they reach a decision? Well, they most judges do the best. They can most judges look at everything you in your introduction you asked about whether popular opinion is relevant. And I think that in many cases popular opinion is relevant, it helps frame the judges background and so on and so the judges can't help but take it into account the judges look at the words of the Constitution. They look at that. They history of the Tushin, they look at the precedent, but they also look at that the general idea of fairness or justice as we see it today and so gradual change occurs, for example, in terms of discrimination first. It was okay to discriminate on any basis and then the court said no, you can't discriminate on the basis of race and gradually the court realized that those precedents meant you probably couldn't discriminate on the basis of gender. And now the Massachusetts Supreme Judicial Court has taken the next step which is to say well same-sex marriages are or discrimination on the basis of sexual orientation is a lot like discrimination on the basis of sex or race. And so it's band also hmm. Well, how does help us if you can understand how that process works where you move from one to another to another and it would seem to a layperson. That if you if something was unconstitutional illegal, whatever it is that all things in of that sort would be unconstitutional if you if I making myself clear here. Well, it's very the problem is there are almost no universals. Maybe there are no Universal except of course, that's a universal. You can't say that all things of any kind are unconstitutional. For example, if you say all race discrimination is unconstitutional. Well the Supreme Court just recently upheld at least some forms of affirmative action, which you could call Race discrimination and other courts have upheld race discrimination against minority races in contexts, like prison race riots where the prison wardens are then allowed to separate or segregate the whites and the blacks. Normally we would say segregation is always unconstitutional. But there's almost always an exception. So it's what the judges do in interpreting. The Constitution is a lot like what they do in any of any other case they look at what the law is and what the trends are in the president's what do the president seemed to be pointing towards and have we gotten there yet and they decide the case. Now what is meant by a strict constructionist? Well, I think a strict constructionist is the opposite of an activist and it has exactly the same lack of real content a strict constructionist is what you call a judge you like a judge who does not read things into the Constitution that you don't personally think are there. So this is that these terms have no legal basis has such no standing in the legal community that is simply in the eye of the beholder. Exactly it is it's in the The beholder it depends on Whose Ox is being gored and there are climbing is supported by pic, Wisconsin. Whoops, we've got a runaway machine going. Okay. Well, I'm still here but I can't remember where I was except that. It's in the eye of the beholder whose Ox is being gored. Right? Right. And so when conservatives don't like something that a court has done they will call the court activist but liberals will say no that's just a cord enforcing the Constitution and when the Liberals don't like it they'll court they'll call the court activists and the the conservatives will simply say no that's just a strict constructionist court and 4147 Constitution. It really is used as a pejorative and it tends to distract our attention away from what the real debate should be which is did the court get it right this time. We're talking with law professor Suzanna Sherry. She's joined us from Vanderbilt University this morning to try to give us a better understanding of the judicial process the starting point this morning being the term activist judge. Is an activist judge and if you would like to join our conversation, give us a call here, six five. One two, two seven six thousand 6512276 thousands of calling from outside the Twin Cities. Our toll free number is 1-800-218-4243 ways. You can submit your question online. If you prefer just go to our website, Minnesota Public Radio dot org and click on send a question Bob. Your first go up. Go ahead, please. Thanks, Gary you bet. Good morning, Susanna. Good morning. Yeah this whole thing's got to be very concerned. First of all about heterosexual and I do want to be sensitive to the belief systems of the folks that are opposing gay marriage. I'm very concerned about this constitutional issue in the argument that the majority should always rule is what I remember from civics class is that's one of the ways that we make laws, but that the judicial was wisely put in place in case the majority gets it wrong. All right, so I'm offended by this intellectual dishonesty about activist judges. Maybe they're just trying to maximize our Collective freedom and prevents the majority from tyrannizing Minority here. Well, you're not the first person to say that let me read you a quote and then I will tell you the surprising source of that quote in a law review article. This person writes judges are sometimes called upon to be courageous because they must sometimes stand up to what is generally Supreme in a democracy the popular will so as you suggest judges. Are there sometimes to prevent the popular will from taking effect. The author of that was no less than Justice Antonin Scalia in a law review article in 1989. So so even judges who are often described as strict constructionist recognize that that the judges are there to prevent the majority sometimes Imposing its will on the minority now, I want to clarify for people who are listening. We're not debating the same sex marriage Amendment today, but we're trying to get some insight as to how the Judiciary works and Bob's question Professor. I thought raises an interesting point one that has come up repeatedly during the same-sex marriage debate and in other venues as well. The argument is this that the constitution is meant to protect Maduro minorities from majority rule. Is that essentially true? Well, it is partly true. The Constitution is meant to do a lot of things and one of the things it's meant to do is just to structure the government much of the Bill of Rights is meant to protect the minorities from what the founding generation of particularly James Madison called majority. Tyranny. There are sort of opposite problems in setting up a government. You want the majority to have the Right to rule. You don't want a minority ruling the majority but on the other hand, you don't want the majority to trample the rights of a minority and and our constitution tries to strike a balance between those two and judicial review. That is the practice of Judges evaluating statutes for whether they're consistent with the Constitution is part of striking that balance are there examples of Judges essentially making up rulings out of whole cloth. I mean where people where the legal Scholars look at this to I don't know no idea where this came from. Well again, it depends on who you ask if you if you ask legal Scholars who are liberal, they will give you one list of such cases. And if you ask legal Scholars who are conservative that will give you a somewhat different list. I think the closest that anybody has come recently to that or the closest that any case has come recently to that. Is the bush V Gore case where the Supreme Court stops the Florida recount now, obviously liberals hate that case but even conservatives who defend it tend to defend it on the grounds that it was really just an S necessity that the Supreme Court had to step in and they had to resolve the election because otherwise there would be a constitutional crisis and even the Defenders of the decision are a little iffy. They're a little dubious about whether this was really the law or ever will be the law again and and so it might it comes close to fitting your definition of making it up out of whole cloth. But other than that case it's rare that everybody agrees that the Supreme Court makes it up out of whole cloth. Hmm Bruce sir your question. Yeah, well, I'm a strict constructionist and I don't like the idea of getting group that the only reason I favored strict construction was a favor me and I can go back to the Carter versus a Coal Company and the government deciding what public purposes it definitely helps me that the government's not in private Enterprise, but I know that was a kind of a not a really strict constructionist point of view and when I go around telegram a strict constructionist, and now I'm getting group that I'm just favoring one side. I don't like that. Well Bruce, how would you define yourself? How would you define strict constructionist interpret the Constitution for what it says? That's it bottom line. And how do you how do you know what the Constitution says? You read it you go back to history see what the paper said at the time they wrote on. Yeah Amendment read any papers that from the government point of view any hearings that they had on it to see what the original intent was. Okay, Professor sounds pretty reasonable. It does and a number of Judges a number of academics Scholars think that that's the way the Constitution ought to be interpreted and a number of Judges including for example, Justice Scalia have said that is the way the Constitution should be interpreted. But it when it comes down to actual cases and trying to figure out well, what do these words mean? What did they mean when they were written? What was the original intent that is a lot harder than it sounds and many of the cases. There will be a a majority opinion on a descent both of which say that they are relying on the text and the history and the original descent and they'll just disagree on what that history means people trained for many many years to become historians and most of them don't Get on to courts and so it's doing history is very difficult to begin with and looking at history. That's 200 and some odd years old that has changed over the time. Remember some of the Constitution was adopted in 1788, but some of it wasn't adopted some of the important Provisions weren't adopted until after the Civil War and so things had changed. It's very hard to figure out even if there is a single answer to what the Constitution means it's very hard to find it. And of course a lot of the those who drafted the Constitution disagreed with each other James Madison might have thought one thing and James Wilson thought another and so I'm not sure which one embodies the intent of the framers so it's not like looking up and looking something up in the dictionary where you go find a word and there's a clear definition or maybe a couple definitions, but there it is and it tells you how to pronounce it and and and that's pretty much the end of it. No, it is nothing. Like that, it is much more like trying to find meaning in a particular old piece of literature. Now. Our judge is allowed to bring their own personal biases, then to the interpretation of whatever they find. Well, you're using another word bias that varies with the beholder. They are certainly not allowed to bring their own personal biases in terms of well. I think the result ought to be this or I like this party rather than that party, but of course they do bring their own views of what the meaning of the Constitution is what the overall purposes of the Constitution are or what the purpose is of any particular provision are and their own biases on how one ought to interpret the Constitution. As I said some of them seem to think that you ought to interpret the Constitution purely by looking at its text or its history or Both I think judges who bring that with them when they get on a court quickly find that they can't do that. But certainly that kind of bias is acceptable but a bias for a particular party is not hmm. Jeff from Egan has an online question for you professor. And he says I would argue an activist judge holds quote that which is not forbidden is permitted. Whereas a strict constructionist holds the reverse that which is let's see that which is for well. Anyway, what are your thoughts? Well, I think it's a part of it depends on whether you're talking about the people or the government, right? It is part. I'm not sure whether he means that an activist judge thinks that anything that the Constitution doesn't forbid people from doing then it's permitted. So the so the legislature can't forbid it or whether or not This judge thinks anything that the Constitution doesn't forbid the legislature from doing permitted. So it you can you can go through several different versions of this. I think he's got a point that goes back to my earlier answer about Judges bring with them an overall view of the Constitution and one of the best ways I've heard this put is do you view the Constitution as creating a regime a democracy where there are islands of governmental power in a sea of Liberty or do you view the Constitution as creating a regime where there are islands of Liberty in a sea of governmental power and and that's a subtle difference but it can make a difference in interpreting cases precedent. Now what role does precedent Play When a judge tries to reach a decision are they pretty well locked. The end so that they don't want to take a dramatic right turn away from what the what previous courts had ruled on a given subject. Well, there's they're supposed to use of precedent one is what lower courts do with Supreme Court precedent and they're required to follow it. But I think what you're talking about is when can a court disregard or overrule its own precedent and there are a number of guidelines on that in general the the doctrine of stare decisis, which means already decided stay with what's decided suggest judges that they ought not to overrule precedent lightly, but they are free to overrule precedent if it's clearly wrong if things have changed in the interim and there's also a debate about whether judges ought to be more or less free to overrule prior precedent in constitutional cases since in constitutional cases, the legislature can't overrule them if a It gets a statutory interpretation wrong. The legislature can just pass a new statute and say hey, we didn't mean what you said. We met we meant this but if the if the court gets in constitutional interpretation wrong, then you have to go through the difficult process of amending the Constitution to correct it and that's why many people argue and many judges believe that the stereo decisis the attachment to precedent should be somewhat weaker in constitutional cases John. You're up next your question. Well, I just couldn't help but notice that particularly with the with the current issue of gay marriage that the opponents. I seem to have this attitude that it's these quote activist judges who have this opinion that they're forcing on the entire rest of us Americans. Whereas they seem to Discount the fact that all of these thousands and perhaps millions of Americans who support this they seem to just discount those as being Americans. They just discount the whole group of people that this applies to is that a fairly typical Professor? If you don't like a decision or what you fear might be a decision that you would characterize it as representing the narrow interests of four or five people in Black robes. Well, this is this is a little bit I think beyond my competence, but I think we all have a tendency to underestimate the number of people who disagree with us and I think in general I know there are there are huge disagreements in the literature for example about what percentage of the American population supports or opposes restrictions on abortion what popular percentage of the American population supports or opposes affirmative action, and it's the same thing with gay marriage those who support it tend to underestimate the number of people who are opposed to it. And those who are opposed to a tend to underestimate the number of people who support it. Let me ask you this. Let's assume Boom that there was some way to determine that the vast majority of people felt a certain way on a given subject in the judges went in and they looked at the law and they said, you know, we really really should rule against the vast majority of people are they inclined to do so given the disruption that such a ruling would would result in I think they will take that into account that if the vast majority of people are opposed to something then they have to be pretty sure that what they're doing is required by the law by the statute or the Constitution or the president or whatever. But as we began this discussion, that's what they're there for. Sometimes the majority just gets it wrong. Certainly there have been majorities in this country who have believed that race discrimination is all right. There have been majorities for a long time that have believed that gender discrimination is all right, and and it took Courts to strike those strike down those statutes and overrule the majorities. One more online question before we break for a nose here Professor. This is from Mark in Minneapolis. And he says since the Constitution and all the laws that were passed were done. So by multiple committees don't we need activist judges to interpret what those multiple committees Mint or trying to do. I think that I'm not sure that activist again is the right word, but this goes back to the point. I think that that you and I were talking about when we were discussing this with with Bruce who says he's a strict constructionist and wants to interpret it by the text given that all of this was written by committees interpreting. The text is a difficult task. It's not like going to a dictionary. Mmm. Well that leads me to the next question that one more before we break have there been any major decisions reached that were just clear-cut that the didn't result in further litigation further debate as to the meaning. Of the legislation or the amendment. I'm thinking for example of the prohibition amendment that seems pretty clear-cut. You can't drink booze. Well in general, of course if the language is clear cut and my favorite example is that the president has to be 35 years old that's very clear cut. It doesn't get litigated because it's so obvious nobody who's 33 years old tries to run for president and nobody would vote for him if they if he did and so what we end up with is sort of a distorted vision of the Constitution there are lots and lots of parts of the Constitution that are very clear but we don't read about them in the Supreme Court or in any Court opinions because they don't get litigated. And in fact, of course, the easier the case is the less likely it is to find its way to the Supreme Court the Supreme Court only gets the very most difficult interpretive questions. We're talking this hour with law professor Suzanna Sherry. She used to teach at the U of M and of course Been on midday many many times over the years. She now teaches law at Vanderbilt University. She's been good enough to join us today to try to help us understand a little bit more about the Judiciary and how judges reach decisions the starting point for the discussion being the frequent references of late to activist judges. We were curious as to what that term means and talk about some of the other aspects of how the Judiciary works. If you'd like to join our conversation. Give us a call here six five one 2276 thousand 6512276 thousand toll free number is 1-800-218-4243 question online go to our website, Minnesota Public Radio dot org and click on send a question and we'll get to more of your questions here in a couple minutes programming is supported by pic Wisconsin and the McGuire agency serving Physicians dentists in hospitals with professional liability insurance and risk management. In Minnesota and throughout the Midwest on the web at Pi C Wisconsin.com a fool is a person with one foot in reality and one foot in in any case I'm Kevin Kling, please join me for a performance on April Fool's Day as we explore fools. I'll be playing the tuba storytelling and I'll bring along some of my favorite storytelling fools. You're invited to a Fool's Paradise Thursday night April 1st at the Fitzgerald theater to find out more call 6512901221. Let's catch up on the latest headlines. Now, here's 20 grand off Tony. Thank you. Good morning, despite reports of serious in fighting the jury in the corruption trial of two former. Tycho Executives is back in deliberations. The judge is refusing to declare a mistrial saying he thinks the jury can still reach a verdict. He told jurors to be nice to one another the manager of a farm supply store is taking the stand today in the State murder. Of Oklahoma City Bombing conspirator Terry Nichols prosecutors say Nichols bought one ton of fertilizer from the store using an alias the same fertilizer used in the Oklahoma City bombing. John. Kerry says, he'll do what he says the Bush Administration won't do put Jobs first in a speech. He's giving in Detroit today. The presumed Democratic Presidential nominee is promising to create 10 million jobs and make sure they stay in the United States Democrats say it's no laughing matter, but Republicans say President Bush was just poking fun at himself. Democrats are criticizing jokes Bush made in a Washington dinner about not finding banned weapons in Iraq Bush today is touting the strong housing market in a speech in New Mexico more options for people who want to test themselves for the virus that causes AIDS the government has approved the first oral test for HIV that gives results in 20 minutes. It's also the second HIV tests on the market that gives more Results in previous tests in Regional news. The chancellor of the University of Wisconsin River Falls is being remembered for her active role in education and the community 59 year-old and lydecker died yesterday in a car accident police say she apparently missed a stop sign at an intersection and was broadsided by a pickup truck South Dakota officials are looking for new help in fighting forest fires this year because fewer National Guard soldiers are available the state depends on Guard soldiers when big fires break out but this year more than half of the South Dakota guard has been deployed overseas in the weather forecast for today partly cloudy with highs from the mid 30s far Northwest to the mid 60s in the South right now. It's 54 degrees in the Twin Cities. Those are the headlines now back to you Gary. Thanks, Tony 25 minutes before twelve. This is midday on Minnesota Public Radio over the noon hour. Today. We're going to wrap up what amounts to our week-long competition. Average of the 9/11 commission hearings were going to be talking over the noon hour today with tommmartens a Minnesotan who now is back in his hometown in Mankato. He served on the National Security Council staff with Richard Clark during the time both under the Clinton and Bush administration's in the time when the commission there when so much of the anti-terrorist activities were underway are weren't under way as the case may be going to talk with him. I'll get his impressions of what happened whether 9/11 could have been prevented and look forward as well. So we hope you'll get your questions ready. We'll get to that over the noon hour this hour we are delving into the world of legal Theory legal philosophy. Our Guest is Suzanna Sherry who teaches law at Vanderbilt University in Nashville, and we were curious as to what an activist judges. That's our starting point today. We thought it would be Interesting to take a closer look at how judges reach their decisions what factors play into their decision-making process when they reach decisions, if you would like to join our conversation, give us a call here, six five one two, two seven six thousand or one eight hundred two, four two two eight two eight Edward your question, please hi. Thanks for taking my question. Uh-huh. I think that it might have already been asked but I'll or answered but I'll ask it anyways, if the marriage discrimination Amendment or really any discriminatory Amendment passes is a constitutional amendment. How does that factor into the Dynamics of the court? I mean if all of the other amendments that are currently if the Constitution itself is basically one that establishes Liberties, how does the Dynamics of the Court change when now you've got discriminatory amendments or discriminatory language into the into the document? All right. Well, of course the amendment will amend all of the previous amendments as well as the body of the Constitution itself. And so it does change the interpretation the court can no longer interpret the equal protection Clause of the Fourteenth Amendment without also looking to what the new proposed amendment does. I'm not sure it will of course be no easier to interpret this amendment if it passes then it's been to interpret any of the other amendments and I know that Congress has been tinkering with the language of this proposed amendment because it's very Our to say exactly what it is they want to say and not say anymore if they just want to if they might want to ban gay marriage altogether they met but I've heard that there are some in Congress who only want to prevent judges from authorizing gay marriage, but they want to allow legislate legislators to do so and some don't want to to prohibit a civil unions. And so trying to get this on paper is very difficult and it will be difficult to interpret but I think Edwards making a broader point. This would only be the second time in the history of the United States if this Constitutional Amendment passes the federal constitutional amendment, it would only be the second time in United States history that an amendment has restricted rights and Liberty rather than expanding rights or and Liberty. The first time was Prohibition and that one got repealed a few years later. All right. Let's go to on to Dan and your question. Hi, thank you for taking my call. My question is about strict constructionism versus activism and the the definition. Okay, and that that is this that it seems to me that saying it's in the eye of the beholder is very much a lawyer's answer to a question that most people do perceive differences on for example, I think most people perceive the activism is when an existing social Norm is changed or new ground is broken and so I'm very I think that there are other views of strict constructionism and activism besides the one that the your guest has forwarded and I guess I'd like her comments on them. Okay Professor. What about that? Breaking ground breaking new ground standard? Well, I like that definition except that by that definition that all judges are activists because for example, the rehnquist court has over the last eight years struck down 33 Federal statutes that is statutes passed by majorities. And in fact, sometimes overwhelming majorities of Congress and and by any definition it seems to me that has to be breaking new ground or changing an existing social Norm one of the statutes that was struck down was the violence against women act which passed by large majority. Another was part of the Americans with Disabilities Act, which was passed by an overwhelming majority. And so I mean that I'm happy too. Except that definition of activism except all judges do it and and people who support the decisions say, well it's activism but it's activism in the name of and forcing the limits of the Constitution, which is fine with me. Now, you raise an interesting point professor and that is dual judges as a rule take into account the vote totals the vote margins by which pieces of legislation pass the Congress or the legislature as far as I'm aware, they do not and I don't and and given their counter majoritarian role that is given the fact that they are in the business of enforcing the Constitution. Sometimes as Justice. Scalia says sometimes against the majority. It doesn't matter how big that majority is. Does there appear to be a difference between elected judges and appointed judges in terms of their willingness to essentially go counter to Majority public opinion actually there there have been some very good studies done on and most of them show that there is at least some difference that in general judges who are elected are less willing to strike down statutes that are enacted by the legislature. And in fact, there have been studies done about about Judges who are up for election within the next year and they are even less likely up for reelection within the next year and they are even less likely to strike down elected State statutes passed by the legislature. Now, of course, you might think that's a good thing unless the statutes are trampling on the rights of a minority that should be protected by the Constitution. So again, it really does go back to the eye of the beholder if elected judges in the south in the 1930s 40s and 50s would never uphold the rights. Of African Americans even even if the Constitution's of those states were clear and we think that's a bad thing Alicia your question. Yes. I am curious the current anti-marriage Amendment debate that's going on The Ledges alot of legislators are arguing that they want to prevent the court from doing something and what does that have to do with the separation of powers and the legislature deciding the court might do this. So we are going to prevent them from doing this that's a really good question because it goes to the structure of the Constitution the legislature can't by itself prevent the court from doing something like this the legislature passes statutes and if the court misinterprets the statute the legislature can fix that but the the legislature by itself cannot say to courts, you may not interpret the constitution in such and such a way. That's why it takes a con. To tional Amendment which is of course a lot harder to pass both at the federal level and at the state level than a simple statute. Now, there's an interesting alternative to the proposed same-sex Constitutional Amendment 1 which would essentially say what this would also be a proposed constitutional amendment. I guess the Senate Judiciary Committee is going to talk about this today. This would say we're going to leave this definition up to the legislature future legislatures Court stay out of the way legislators will make that decision. Are there other examples of that approach being taken on other issues. There's not as far as I'm aware of a constitutional amendment taking that approach their have occasionally been either statutes or proposed statutes that try to deprive a court of jurisdiction, which is what it sounds like this is doing and that that there's a lot of controversy and it's never been Tentatively resolved about whether it is constitutional for a legislature to take jurisdiction away from the court in that manner that is to take it away from the court because they're afraid of what the court might do. I would doubt that you could write a constitutional amendment that leaves the definition to the legislature and takes it away from the court without creating all sorts of problems when for example, what if whatever the the state statute on marriages is somewhat ambiguous about some aspect of marriage how long you have to wait for a license or whether you have to get parental permission to marry at a certain age or what it means for a marriage to be dissolved. There's always gaps in statutes and that's what courts do is interpret the statutes and try and fill in the gaps and figure out what the legislature meant, but an amendment like the one you just Just did Might prevent the court from doing that and then you then you'd have a statute with nobody to interpret it. Unlike the 35 year old presidential requirement right clear-cut thing at all. If you had a statute or an amendment that said the court can't interpret the 35 year old 35 year old presidency requirement. I don't think anybody would care. But if the court can't interpret the state's marriage statutes that's going to cause some real problems that have nothing to do with gay marriage. Is there any again I don't want to get too far into this same-sex marriage issue, but it's there and raise us many interesting questions. Is there any legal consensus on this full faith and credit provision of the Federal Constitution and this this comes up because there is a concern on the part of people supporting the proposed amendment to the Minnesota Constitution concern that if For example people go to marry Massachusetts same-sex couple goes to Massachusetts gets married. They come back to Minnesota that Minnesota would be required to recognize that marriage is their firm consensus in the legal Community as to whether or not Minnesota would have to recognize a marriage like that. Actually there is a pretty firm consensus. Although there's no Supreme US Supreme Court decision on it, which is that in general states do have to recognize marriages from other states except into circumstances one is where the people essentially went to the state just to get married so that you can pretty much enforce your own marriage laws. It's a state can enforce its own marriage laws against people who are trying to evade them by going to another state to get married and the other exception is much broader the states have essentially Most states follow the position that they don't have to Noise another State's marriage if that marriage is against public policy. So there's pretty well consensus that that is an in the valid interpretation the best interpretation of the Constitution's Full Faith and Credit Clause so that if a Minnesota Court were to decide that same-sex marriage is against Minnesota policy than Minnesota would not have to recognize a Massachusetts gay marriage and the federal Defense of Marriage Act makes that quite clear Congress passed the statute passed a statute some years back that said states do not have to recognize gay marriage from another state. So given the fact that Minnesota has one of those Defense of Marriage laws to it's at least conceivable that if that kind of a case came before the Minnesota courts, the courts could say well now this doesn't fit with Minnesota public policy. So it's more than conceivable. It's probable it is highly unlikely. Lee that any state with a defensive Marriage Act or even without one but where gay marriage is not permitted it's highly unlikely that they would in fact recognize a gay marriage from another state. Well, your next go ahead place is thank you. I'm with a national level and the state level it seems that the discussion has been about the courts versus the public were versus the vote let the people decide and it seems to me that one of the important roles of the court has been to protect the minority against the majority and as opposed to enforcing the will of the majority and I'm wondering if if that discussion is taking place among legal academics and then secondly if in the age of sound byte information gathering if there's concern that manipulation of the majority of the public at the same Time of the weakening of this rule of the court system could be dangerous path. Well in terms of the debate in the legal Academy, you've I think put your finger on what the legal Academy is saying, which is that in fact, we have to find a middle ground between allowing the majority to rule and protecting the minority from majority tyranny. And so to the extent that public opinion or at least the public opinion you're referring to has always is focusing on let the people rule I think academic opinion recognizes that that's not quite so clear cut that it that sometimes the people shouldn't rule the I think the soundbite question is really interesting. I certainly politicians have four generations. You sound bites to manipulate public opinion, but and as have people Not politicians, but that's protected under the first amendment. I mean if I want to use sound bites to manipulate your listeners Gary, that's my right. Although you won't invite me back. I assume so. I certainly would Suzanna Sherry is our guest. She teaches law at Vanderbilt University in Nashville used to teach at the U of M. She's joined us this hour to give us some insight into how judges make decisions starting point as we noted earlier in the program. The starting point was a curiosity about just what is an activist judge a term that we hear much men. Do lots of references to activist judges these days we thought well, what is an activist judge and thought it'd be a good opportunity to learn more about the Judiciary and how judges make decisions now, we don't have a lot of time left. But again, if you have a question for Professor Sherry the number to call six five one two, two seven six thousand or one eight hundred two, four two two eight two eight or you can send in your question online. Just go to our website, Minnesota Public Radio Dot And click on send a question Bruce your question. Yes greetings. Carry. My question has to do with if the courts are the in the checking checks and balances that the courts of the check on the legislature. What's the check on the courts and I'll illustrate That by The line-item veto as you which many years back President Reagan brought up and it took a considerable length of time for the legislature to work this all through and finally passed the law and President Clinton was able to effectively use it until the court Struck it down. Okay. So the question is what is the check on the courts? Well, that's basically the amendment process. It is more difficult to pass an amendment but every state as well as the Federal Constitution has a process for amending the Constitution and in fact, the Federal Constitution has been amended several times specifically to overrule a prior Supreme Court case. So that's that's the formal check on the courts. There are informal checks to that. If a court for a long time is against popular will is doing things over a long period of time that most of the people don't like there are informal ways to get the court to change its mind. It's not impervious to public opinion President Roosevelt. For example suggested his court packing plan adding justices to the court to try and get the court to change his mind when it Tracking down much of the new deal and whether that caused the court to change its mind or whether just sort of popular opinion and development of legal doctrines and a bunch of other things caused it to changed its change its mind. That's our clear historical example of where a court tried to go against popular opinion for a number of years in a broad range of topics and and it just couldn't do it. Eventually the court changed its mind isn't it tough though, especially with the federal Judiciary where the judges are appointed for life to to rain and a judge who seems to be a little out of the mainstream. Well, it's no you cannot reign in a judge who's allowed to the mainstream unless they're impeachable e out of the mainstream which essentially means drunk or crazy or something like, you know, not doing their job, but but you can rein in the court first of all, you can amend the Constitution and that will change the law also in general there is a Fair amount of turnover on courts. This is the current Supreme Court is the court that has been the gone the longest without any change in Personnel without any new justices in the entire history of the American of the United States. So usually there's a lot more turnover and that gives presidents and send the Senate the president of the Senate the power to change the direction of the Court slowly. I mean, we all know that that this court is different from the rehnquist court. I'm sorry from the Warren Court which was different from the court right after the New Deal which was different from the court before the New Deal courts do change over time Michael your question. Yeah. Good morning Gary on this Thanksgiving Day. I'd like to hear your guests comment on the fact that a it seems to need. So there's some hypocrisy in the claim of all these people that don't want to see Uncle activist judges that will rule on cases that were the outcome will not be the way they like it to be because I see a lot of people that want Justice is that will not rule according to Prior legal precedence or strict interpretation of the Constitution such as people that want justices that will overturn Roe v-- Wade or this is pretty Plum achill statement. But yeah, that's good. Get to the question there. Well, please okay. Look at most V Gore either. It seems that they're fit activist judges have not ruled strictly upon the merits of the case. But but we weren't many people want substances that will rule according to their own personal opinion. Can I hear your guests comments on that? That's clear. Okay. I think that's just a Perhaps more controversial way of putting what I said is that activism is in the eye of the beholder that is that the same people who call some kinds of decisions activist take decisions on the other side that are very similar and say no those are not activists. That's what the good judges should be doing. And but I think that to the extent there's hypocrisy it really is on both sides the the same people who are defending the Massachusetts Supreme Judicial Court are calling the US Supreme Court activist for what it's been doing conservatively and the same people who are calling the Supreme, Massachusetts court activist for its ruling on gay marriage or defending the US Supreme Court and saying no, that one's not activists. So it does go both ways. I'm wondering is activist always been the pejorative of choice in legal debate or it would did we at one time in the past distant past have another term that We would call those people. Well, I think it's been the the word of choice for about 50 years since Alexander Bickel came up with it, but or and defend argued that a court should have passive virtues the the pejorative word of choice before that. I think was just wrong and I think people should be free to argue that a court got it wrong. But I think the debate about activism takes our distorts the discussion and takes our eyes away from the real question, which is did a court in any particular case get it right or wrong. But how do you know if it got it right or wrong you were saying earlier Professor there? There's so many things that these judges are supposed to take into account different ways to look at any given bit of information. How do you know if they're right or wrong? Well, you never know for sure, but I can obviously I'm not going to do it now, but you and I could have a long discussion about who's right say on the gay marriage debate or Who's right on abortion? And we would be trying to persuade each other and persuade the listeners and so on and and that I think is a fine discussion to have and that can influence justices and judges. They can be persuaded by what they read and what they hear that you know what maybe maybe that decision is wrong, even though I thought it was right at the time. I've learned more I've heard more arguments it's wrong but there's no there's no right answer that is you can't say. Oh, yeah, that one's clearly wrong. It's a question of persuasion. Can I ask you one other question completely off topic, but another one that has always been of interest to me and we don't have a lot of time left, but our us laws based on religious principles subject that comes up a lot these days. I'm not sure I guess some of them are consistent with religious principles of the founding generation. It was pretty clear that they did not want religion injected into the government. And so they didn't want the laws specifically to be based on religious principles. But but religious principles that are common to most or all major religions like Thou shalt not kill are going to find their way into the laws no matter what We have to leave it there but I feel like I got a good legal education today Professor. I hope I helped the listeners did to thanks so much for joining us. My pleasure. Our Guest this our law professor Suzanna Sherry. She teaches at Vanderbilt University in Nashville used to teach at the U of M of course and she's been a frequent guest here in our midday program. We thought we would have her back today to help us understand some of the issues being discussed affecting the laws of America and the in Minnesota specifically a term that comes up a lot these days activist judges like thank all of you who've been with us this hour and we invite you to stay tuned now over the noon hour. We're going to talk with Minnesota and tommmartens. He was on the National Security Council staff with Richard Clark will get to that over. The noon hour programming is supported by Fairview University Medical Center where together with University of Minnesota Physicians clinical Innovations are discovered and used for the benefit of patients. They care for more information at 1-800-899-5051. This week the European Union hit Microsoft with a 613 million dollar fine and demanded changes in the way the software giant does business. I'm Neal Conan join Ira Flatow on the next Science Friday for a look at this decision plus the 15th anniversary of the Exxon Valdez disaster. That's the next Talk of the Nation from NPR news. One o'clock this afternoon here on Minnesota Public Radio your to 91.1 Cana wfm Minneapolis. And st. Paul Sunny Sky 54 degrees currently in the Twin Cities in the Weather Service says, it could hit 60 yet this afternoon. It's going to be sunny all afternoon beautiful day tonight cloudy to partly cloudy, maybe some rain after midnight with a low 40 to 45. Then there's a good chance for showers and thundershowers tomorrow and probably Sunday as well high tomorrow again near 60

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