Sean Turner
July 16, 2004
Judges and public opinion
By Sean Turner

"It is very unfair to judge any body's conduct, without an intimate knowledge of their situation." —Jane Austen, British Novelist

The proper role of a judge is, as succinctly stated by former U.S. Supreme Court Justice Potter Stewart, "to remove from his judicial work his own moral, philosophical, political, or religious beliefs," and to form decisions based on an interpretation of the laws as they have been enacted. The now hackneyed term "activist judge" is often used to describe jurists who have purportedly rendered decisions which lie outside of the aforementioned "proper role," in an effort to modify policy based on personal beliefs.

While the "activist judge" label applies to some judges in some cases — often, what is perceived as "judicial activism," results from jurists forced to interpret poorly crafted and/or ill-intentioned legislation. One such example is the decision last May by the Georgia Supreme Court which reversed the conviction of Marcus Dixon — a then star high school football player and honor student — for aggravated child molestation in connection with a sexual encounter with a classmate in Rome, Georgia last year.

In that case, the Court said that Georgia's statutory rape and child molestation statutes must be considered together to determine legislative intent. The law defines statutory rape as a misdemeanor if the victim is 14 or 15 years old, and the perpetrator is no more than three years older than the victim. In the opinion written by Chief Justice Norman S. Fletcher, it states that "Reading these statutes together shows a clear legislative intent to prosecute the conduct that the jury determined to have occurred in this case as misdemeanor statutory rape." Also according to the opinion, Georgia law eliminates "any discretion over whether to punish conduct meeting the misdemeanor statutory rape criteria as either felony or misdemeanor statutory rape. It would defeat the legislature's intent in doing so if the State retained the discretion to prosecute the same conduct as either misdemeanor statutory rape or felony child molestation."

This case illustrates what happens when vague or incomplete legislation becomes law, and judges are forced to make decisions through the interpretation of the intent of the law. Justice Leah Ward Sears — who is seeking to retain her place on Georgia's highest court in next week's primary election — concurred with the majority decision in the Marcus Dixon case. This decision, along with the concurrence in the 6-1 majority decision in 1998 which struck down Georgia's 182-year-old sodomy law as unconstitutional, has made Justice Sears a repeated target of mischaracterizations by her Republican-backed opponent and his supporters in this year's election.

Election year politics and ubiquitous media coverage often bring such judicial decisions related to significant cases, or so-called "hot-button issues," to the forefront of the minds of the consuming masses. Lest we forget that hidden amongst the campaign sound bytes and insidious labels tossed around with reckless abandon, are the personal agendas of those seeking personal aggrandizement. When the race is a judicial one, abundantly qualified judges like Justice Sears — a Cornell University and Emory University School of Law graduate, and woman of notable firsts — become the victims of political ideologues, rather than being recognized for their steadfastness to the "cold neutrality of an impartial judge," as aptly put by Irish philosopher Edmund Burke.

If voters wish to make informed decisions in local judicial and other races, one must develop an understanding of the issues; have a familiarity of the laws; and take the time to get to know each candidate before forming an opinion. I did just that with Justice Sears, having visited her this week one-on-one to discuss her career and the upcoming election. Despite the partisan antics, the local and national political hype, and the false labels hurled in her path; she presented me with not only expected warmth, but also her commitment to her impartial judicial role — an attribute often vacant in the U.S. Supreme Court nowadays.

© Sean Turner

 

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Sean Turner

Sean Turner is the head of the Republican Liberty Caucus of Georgia, and a member of the Project 21 Advisory Council of the National Center for Public Policy Research... (more)

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