When folks complain about "activist" judges, it usually just means they don't like the outcome of a case.
Nobody ever says, "The side that I like won — but the judge was wrong."
For example, two federal judges so far have ruled that the national health care law is constitutional. Two have ruled it is not.
Which two were "activist"? The two who agreed that Congress has the power to penalize Americans for not buying health insurance? Or the two who ruled Congress lacks any such power under the U.S. Constitution?
Here in Florida there's a running battle between our state Supreme Court and the Legislature. The Legislature's leaders often use the A-word to criticize the court.
Sometimes it's true — the court goes out on a limb to come up with a ruling. But sometimes it's the Legislature that tries something kooky, and the court that sticks to the letter of the law.
I'm bringing this up because the Florida Supreme Court issued a ruling recently that got little attention, but which was a model of deference to the Legislature.
The case involved a ruling from a lower-level trial judge that threw out Florida's system of "filing fees" for lawsuits and appeals.
The Legislature passed a law saying the first $80 of every filing fee in a court case goes into the state's "general revenue." The Legislature can spend the dough as it chooses.
Yet our state Constitution says:
The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.
A lawsuit claimed that by tacking on an extra $80 to court fees to raise money for the state, the Legislature was violating this provision. A Leon County circuit judge agreed and struck the law.
This was no small potato. Last year these fees were worth $187 million. So former Gov. Charlie Crist and former Chief Financial Officer Alex Sink appealed.
Given the chance to sock it to the Legislature, however, the Supreme Court … sided with the Legislature.
In the first place, the court ruled, the Legislature spends a lot more money on courts and justice than the amount raised by these filing fees.
It doesn't matter that the fees are first put into the state's general revenue — more money than that comes back to the courts.
One dollar is just as good as another. (As the court put it, "Money is fungible.") The Legislature is perfectly entitled to do it this way.
The Supreme Court even criticized the trial judge for his finding that the laws "deny the citizens of this state the right to have their courts adequately funded."
The court asked: Where is the evidence?
"The trial judge," the Supreme Court noted, "simply took judicial notice of underfunding based upon the fact that he had recently received a two-percent reduction in his salary."
In general, the Supreme Court said, it must give the Legislature "a presumption of constitutionality" and to find the Legislature's laws constitutional "whenever possible."
Well! Will the Legislature send the court a nice thank-you card now? Doubtful. In fact, one of the top priorities of this year's Legislature is to do something to rein in that "activist" Florida Supreme Court.