The other judicial activism: I’m just saying

As most of you know, “judicial activism” as it is generally used is a piece of empty rhetoric is better suited to use by non-lawyers than lawyers. But, maybe some District Court judges are exhibiting a different type of activism.

Some scholars – notably Cass Sunstein – have attempted an apolitical definition of activism, which is based solely on a judge or court’s willingness to displace an action of Congress.  Even there, however, one can discern some political leanings, because 1) individuals that seek to challenge an act of Congress generally have different interests than Congresspeople; and 2) exactly who is the plaintiff or defendant might be flipping around depending on the circumstances.

But, a discussion at C&F got me thinking, what about District Court judges that raise issues sua sponte, that frustrate the ambitions of the parties?

There might be problems with this as well.  Some judges, commendably, might raise an issue regarding the power of the court, or the nature of proceedings before the court, because they feel that their constitutional position would be compromised by not raising them.  (For instance, a judge might, on his own motion, dismiss an action because he doesn’t see an actual controversy, or that there is no diversity of citizenship.)

Anyway, C&F points to the efforts of Judge Paul “I hate Miranda” Cassell to increase sentences beyond what the prosecutor and defense expect.  Prosecutors are more than capable of calling the court’s attention to the societal good served by making sure that people are taken from society and put in a hole for a portion of their lives.  But, prosecutors have interests that are not immediately apparent to judges.   What good does second guessing the parties do?  Isn’t this a form of activism that isn’t talked about.