Right Wing Judicial Activists

Eighteen states have laws that require minors to get parental consent before they can have an abortion. These states are required to have an override mechanism where minors can get a judicial determination that they may pursue the procedure without parental endorsement.

Judge John McCarroll of Shelby County, Tennessee, and now many others, refuse to hear such petitions from minors arguing that he "could not in good conscience make a finding that would allow the minor to proceed with the abortion." (see Adam Liptak, Some Judges are Ducking Cases of Teenagers Seeking Abortions, California Law Student Journal, Vol. 11, No. 1 Sept. 2005.)

What would these same judges say if other judges overturned jury death penalty verdicts saying that they "could not in good conscience make a finding or grant an order that takes a human life."

This practice mirrors efforts by Pharmacists who have refused to fill prescriptions for birth control. Neither professional field however is charged with employing their own moral judgemnt in deciding whether or not to execute their duties. Judges specifically are under oath to uphold the law, not merely uphold those laws with which they agree.

This creates another problem where the workloads of other judges are becoming overwhelming because they are willing to be held to their duties. In a matter where time is of the essence (pregnancy), a clogged court system and the resulting delays could ultimately decide people's rights and access to abortion (in this case).

A judge's strike against a law cannot be used in order to supercede the efforts of the legislature, is a activist effort to avoid enforcement of the laws, and is an unconstitutional violation of the separation of powers doctrine (although in state courts this relies on the separation of powers defined by the state constitutions).

If a judge cannot execute his duty to uphold and enforce the laws enacted by the legislature then he is not fit for the bench and should never have been appointed.

This is the greatest threat to the independence of the judiciary (and our form of government) I have ever encountered.