Before getting to the main event, today’s speech by U.S. Senator Al Franken (D.), a brief note promoting the Federal Bar Association, Minnesota Chapter. Apparently, it is the second largest chapter nationwide (!) after New Orleans (!!) with memberships of 809 and 1,113 respectively. There is a 2010 “Chapter Challenge” by the national parent organization, apparently, and the largest net percentage increase in membership will win cash, which would go to the Chapter’s pro bono efforts — in our case, to the Chapter’s Pro Se Project.
Go here to join or explore the FBA/Minnesota Chapter.
As for the headliner, he was introduced by U.S. District Court Judge Joan Ericksen (D. Minn.), who took took the liberty of mentioning that, notwithstanding politicians cries to the contrary, “judicial activism” is, in her view, “almost as rare as hen’s teeth.” Judge Ericksen pointed out that it is, in fact, exceedingly uncommon for judges such as herself to strike down statutes as unconstitutional. Normally, judges, of course, do the critical if perhaps mundane work of simply applying the law to the facts before them, leaving it to legislators to make or change legislation. Judge Ericksen then went on to praise Franken by way of introduction, pointing to his introduction of no fewer than 18 bills since his late start in the U.S. Senate and his propitious start with a perfect “800” on the math part of his SAT college entrance examination. Due to Franken, Judge Ericksen quipped, it’s “almost cool” these days to say you were brought up in St. Louis Park.
More on Sen. Franken’s speech after the break.
The thrust of Sen. Franken’s speech, ironic in light of Judge Ericksen’s comment on judicial activism in the introduction, was on the current U.S. Supreme Court’s extreme judicial activism. (The irony was superficial; two speakers’ views were not inconsistent, actually. It was plain that Judge Ericksen was speaking of the trial judges and Sen. Franken clearly limited his comment to “the SCOTUS.”)
Franken walked the audience of lawyers through a “century of precedent” that the current Supreme Court relegated to the dustbin of history with the recent Citizens United case. He pointed out that the most recent decision that the Supreme Court rejected was in 2003 and he quipped that the U.S. Constitution was not amended in the interim.
And it’s not just Citizens United, Franken continued, pointing to cases in antitrust, civil procedure (Iqbal, Twombly), and abortion rights where “judicial activism,” long decried as a wrong committed by liberal-leaning judges has been the right-wing judges’ weapon of choice in Franken’s view. “It’s a problem,” Franken concluded, this “activist Supreme Court” and the next question is, “What to do?”
Lamenting the terrific burdens faced by U.S. courts, noting that the District of Minnesota has nearly twice the number of cases per judge than other districts (which could change if the Judgeship Act, sponsored by Franken, passes), Franken’s core message to the Minnesota federal bar was to call upon the bar, through lawyers’ advocacy and through the commitment to excellence and to justice, to do its part to ensure access to courts and to justice. Senator Franken’s message appeared well-received and was followed by sustained applause.