WHAT IS AN "activist" judge? Based upon my observations, it appears to be a judge with whom one disagrees. Have you ever heard someone say that they agree with the decision of an activist judge?

Unfortunately, the term reflects and perpetuates a misperception about the role of judges in our society. Contrary to popular myth, judges do not wake up in the morning and say to themselves: "I think I will decide the following interesting issue today." In fact, judges decide cases with issues brought to them by litigants who disagree, generally very strongly, about the proper resolution of the dispute.

In this context, judges have to interpret the Constitution, statutes, contracts, insurance policies, deeds, wills, and other things which have been enacted or entered into by legislatures, private parties or other entities. Judges are aided and guided in this effort by principles that have evolved over centuries of jurisprudence in England and this country. Ultimately, however, the task is to divine the intention of those who created the Constitution, the statute, or the contract, rather than to impose the judge's personal view.

Generally, each litigant is contending that his/her interpretation of the document at issue is clearly correct, and the other side's clearly incorrect. In reality, the language to be interpreted usually contains some degree of ambiguity from which the competing arguments derive. If the issue were truly clear one way or the other, no extended analysis would be necessary to explain the result.

Some examples illustrate this. The news media recently reported on the New Hampshire Supreme Court decision that the gasoline tax cannot be used to develop rail transportation. Without more, this seems to suggest that the five justices got together, and expressed their personal preference as to how the revenue of a particular tax should be used. To be precise, the news report should have indicated that the New Hampshire Constitution was amended in 1938 to provide for a gasoline tax that could only be used for highway construction and maintenance. The Legislature passed a statute that used some of those funds for the development of rail transportation, and a private trade group challenged the constitutionality of the statute. In order to resolve the dispute, the justices reviewed the constitutional provision, and the intent of its language, to see whether use for this purpose would be proper. They concluded that the language plainly did not allow such a use, and therefore invalidated the legislative enactment. Their decision was based on the language of the constitutional amendment, and did not reflect anyone's view on the desirability of funding more rail transportation.

In another decision that achieved wide notoriety, the court had to interpret a statute that had no definition of a key word. In a divorce case, one spouse had accused the other of adultery on the basis of a homosexual relationship. While the applicable statute recognizes adultery as one of the fault grounds for divorce, it contains no definition of the word adultery, and thus the court faced the interesting, and delicate, task of determining what the legislature meant by the word when it was adopted. Again, long-standing rules of construction are available, as are a number of dictionaries. In the end, a divided court decided that a homosexual relationship did not fall within the ambit of adultery, but it was obviously an issue upon which reasonable minds could differ. More importantly, if the current Legislature should feel, as a matter of policy, that adultery should include a homosexual relationship, the statute can be amended or clarified. The significant point here is this: the judicial system is there to decide issues of interpretation of an existing enactment or document, but always within the intention of the creators of the language at issue.

As a final example, albeit hypothetical, consider a residential lease that prohibits pets. See Shirley S. Abrahamson, "How Tootsie the Goldfish is Teaching People to Think Like a Judge," Judge's Journal, Spring 1982. The landlord discovers that the tenant has a goldfish in a bowl. Has the lease been violated? If this dispute were to reach the courts, the judge would have to interpret the lease agreement in accordance with the intention of the parties. Is the answer clear? Probably not, but the courts are there to resolve these, and more significant disputes, on a daily basis.

In almost all cases, if the impacted party disagrees with the result, steps can be taken to change the result in the future. In the meantime, those who disagree often label the judge "activist." To be sure, there are decisions that recognize, or negate, common law rights, and those who disagree with the policies reflected in these decisions often claim "activism." Yet, consider the prospect of our society without an independent judicial branch.

It has been said, "The law must be stable, yet it cannot stand still." So it is that we entrust the development of such principles to our judges, yet even these decisions are generally subject to legislative modification by popularly elected officials. Efforts to "rein in" judges for such perceived errors can be more dangerous than the decisions they seek to cure.

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