Judicial Activism, Defined

By James R. Edwards, Jr. on February 10, 2011

A Virginia judge has defied the ruling of the state supreme court, reopening cases where certain criminal convictions make such aliens subject to deportation.

I recently praised the common-sense decision of the Virginia Supreme Court halting such shenanigans. The abuse of judicial discretion in such a manner puts the rule of law at risk. The state Supreme Court rightfully put a stop to a practice that seeks to undermine the will of Congress and manipulate the justice system so certain criminals receive favored treatment.

But Chief General District Court Judge Dean S. Worcester of Loudon County has thumbed his nose at the high court. The state's highest judicial body explicitly ordered closed the option of lower courts in Virginia to open up immigrants' old cases. Nevertheless, Judge Worcester has reopened a 2005 criminal case so the immigrant who pleaded guilty can escape removal proceedings:

"If this Court were to abide by the ruling" issued by a unanimous state Supreme Court, Worcester wrote, "a constitutional violation will stand uncorrected. . . . The Court will not allow this to happen."

Well, that's one judge's (sanctimonious) opinion. His more prudent colleague sees it differently and more appropriately, in the big picture:

On Friday, fellow Loudoun District Court Judge Julia T. Cannon, faced with an identical circumstance, declined to reopen a case and wrote that "lower courts are obliged to abide by rulings of appellate courts."

Thus, Judge Worcester has elevated his individual opinion above that of the high court. He has taken the law into his own hands. He is now effectively legislating from the bench. He has become a law unto himself. If he wants to set policy, let him run for the state legislature or Congress. But this rogue behavior warrants impeachment.

In the state Supreme Court's view, such reconsideration of cases long closed crosses the line of what is prudent and legal. Lower court judges are supposed to follow such precedents. It's incumbent upon them under their judicial canons. This lower court judge is exhibiting reckless behavior – misconduct that puts all Virginians at risk of judicial fiat, judicial appropriation of policymaking power, judicial favoritism for certain criminals.

This started because "the U.S. Supreme Court ruled in Padilla v. Kentucky that defense lawyers must advise their clients of the possible immigration consequences of their cases. That spurred even more coram vobis motions, Virginia prosecutors said." Now, the U.S. Supreme Court erred in the Padilla case because it interjected a policy (legislated improperly from the bench) that Congress, which holds plenary power over immigration, never enacted. But even if the U.S. Supremes did rule wrongly on the Padilla question, wholesale reopening of immigrants' criminal cases should never happen and the Virginia high court ruled correctly.

If you ever wanted a definition of judicial activism, some may point to the Padilla ruling or similar federal Supreme Court decisions. But there should be no one on any side of the issue who could argue with Judge Worcester's defiance as the very definition of judicial activism.