Law.com - Less Is More: When Courts Decide a Law Means the Opposite of What It Says

Law.com - Less Is More: When Courts Decide a Law Means the Opposite of What It Says

"Judicial confirmation hearings might lead one to conclude that appellate courts spend the bulk of their time deciding whether to invent new, or overrule previously invented, constitutional rights. But, in reality, those very controversial issues, while they may attract the bulk of media attention, only make up a small portion of any appellate court's docket. Much of what appellate courts do on a regular basis involves the rather mundane task of construing laws passed by the legislature."

Despite the arguments that the ultra-conservatives offer regarding "judicial activism," the vast majority of cases in our courts are handled in pretty much a "routine" and reasoned basis. As for activism, there is an equal number of cases from both conservatives and liberals on the bench.

"Some appellate judges purport to adhere to the approach that in construing a statute, all that matters is the language of the statute itself. Other appellate judges undertake to consider not only the language of a law, but also any legislative history that might assist in determining what the law was intended to mean. Whatever approach an appellate judge uses, however, on only the rarest of occasions do appellate courts decide that a particular legislative enactment in fact means exactly the opposite of what it says."

Well, that is good news. But how many judges actually use the Constitution as a basis to determine that a law is constitutionally grounded? I think far too many judges ignore the Constitution in the process of deciding a case... especially the Preamble and the first principles embodied in the document. Come to think of it, so do members of the executive and legislative branches.