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Judicial Activism May 26, 2009

Posted by Dwight Furrow in Dwight Furrow's Posts, Political Philosophy, politics.
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Obama’s nomination of Sonia Sotomayor to the Supreme Court has already provoked complaints that she lacks the intellect to be a Supreme Court Justice. These complaints are coming from intellectual giants in the Republican Party such as Karl Rove and Rush Limbaugh. I’m sure we will hear, also, that she is a threat to white men everywhere from the same deep thinkers.

But after the silliness, racism, and sexism scurry under a rock where they belong, the opposition is likely to focus on charges that she is a judicial activist. This is standard Republican fare whenever a liberal is nominated to a judgeship.

It is also utter nonsense.

This idea of judicial activism has been paraded in public since courts were forced to deal with issues of civil rights in the 1950’s and 60’s and abortion in the 1970’s.Striking down Jim Crow laws was unpopular in the South, forced busing was unpopular everywhere, and the abortion debate required the court to deal with issues that could not have been anticipated by the people who wrote our Constitution.

People who didn’t like these decisions argued that the court was making law, not interpreting it—hence the charge of judicial activism. It means going beyond the constitution in order to achieve some political end.

But the distinction between making laws and interpreting laws is not precise. The constitution contains nice sounding clauses such as “equal protection of the laws”, “due process”, “freedom of speech”, “separation of powers” etc.

But the constitution doesn’t tell us what these phrases mean and it doesn’t tell us how to apply them. No text is self-interpreting and the very fact there is a case before the Supreme Court entails that there is disagreement on a question of interpretation. If the plain meaning of the text was sufficient, there would be little reason to have a supreme court.

The question, of course, is what criteria should justices use when making interpretive judgments. In our legal system, judges are constrained by precedent. But that can’t be an absolute constraint. If it were, laws would never be overturned. So how much weight should legal precedent be given? There is no simple answer to this—both conservative and liberal judges are inconsistent regarding the weight of precedent.

Is the text more important than legislative history? Should the purpose of the law be considered? What about contemporary norms and practical considerations of whether the law is workable? What role should moral ideals such as liberty or equality play? Again, the constitution itself doesn’t answer these questions. They can be answered only by each individual judge.

In the end, every judge will use their moral sensibility, life experience, judicial philosophy, and political ideology to interpret the constitution. This is not because they are excessively enthusiastic about their political agenda—it is because there is no alternative. The notion that there is some impartial point of view that considers only the law as written is simple nonsense; and the idea that conservative judges alone occupy this point of view is self-deceptive blather.

In fact Media Matters reports that:

A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder indicated that among Supreme Court justices at that time, those most frequently labeled “conservative” were among the most frequent practitioners of at least one brand of judicial activism — the tendency to strike down statutes passed by Congress. Indeed, Gewirtz and Golder found that Justice Clarence Thomas “was the most inclined” to do so, “voting to invalidate 65.63 percent of those laws.” Those most frequently labeled “liberal” were the least likely to strike down statutes passed by Congress, according to the study.

A recently published study by Cass R. Sunstein (recently named by President Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism — the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court’s “conservative” justices were the most likely to engage in “judicial activism,” while the “liberal” justices were most likely to exercise “judicial restraint.”

So during the confirmation hearings when Senator Blowhard raises the specter of “judicial activism” be aware this is code for “liberal idea I don’t like”.