January 10, 2012

Eye of the beholder

According to Conservapedia, Judicial activism is when

“…courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. "Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary”

Black’s Dictionary of Law offers a somewhat simpler definition, describing judicial activism as a…

"…philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions"

The actual term is relatively new in the American Political lexicon, having first appeared in a January, 1947 Forbes Magazine piece penned by Arthur Schlesinger, Jr.  Not unsurprisingly, Schlesinger was describing decisions by the Court of Chief Justice Harlan Fiske Stone, and specifically those by Associate Justices Hugo Black, William Orville Douglas, Frank Murphy, and Wiley Blount Rutledge… all appointed to the Court by Franklin Delano Roosevelt. Chief Justice Stone was himself rather moderate but sided with the liberal majority quite often.

The odd thing about the term is just how vagrant the definition has become over the ensuing years. Judicial appointees have always been chosen to reflect the politics of the current White House occupant, and the tilt of any decision would naturally lean with the majority. Depending upon that majority, the Court’s decisions over the three quarters of a century since Schlesinger coined that term have reflected left leaning philosophy alternately with right producing decisions to almost equivalent degrees.

Yet Conservapedia continues their very interesting definition from the above to say…

“…judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate”

Since when does public opinion rise above the level of law? Is it not the role of the Court to make decisions based upon constitutional values rather than bow to majority rule and in spite of majority opinion? Our Constitution was written with the intent of protecting the rights of the minority from the will of the majority.

One of the decisions the right loves to defame as “activist” came not long after Schlesinger penned his Forbes piece. In Brown v. Board of Education the left-leaning Earl Warren Court overturned Plessy v. Ferguson, which for 60 years had lent a judicial stamp of approval to racial segregation. This "activist" ruling started our country on a long road toward racial equality.

Some 20 years later the Burger Court applied 14th amendment privacy protections to current state laws that criminalize abortions. Both the 1949 Brown decision and Roe v. Wade in 1973 are decried by conservatives and cited as evidence of an overreaching Court. The prohibitions and limitations voided by each of these cases find root not in fiscal conservatism, but in a conservative Christian mentality. Look around today and see who it is shouting "activism" the loudest.

Slowly, starting in the 60's, the liberal mood began to ebb. Prompted by the incessant fear mongering of the newly empowered "Christian Conservatives," the electorate began to swing to the right. In 1971 Richard Nixon appointed the very fiscally conservative William Rehnquist to replace the liberal Hugo Black, and then 1986 Ronald Reagan nominated Rehnquist to replace moderate Warren Burger as Chief Justice. To fill the remaining vacancy, Reagan next tapped neoconservative Antonin Scalia.

Liberals could see what was happening and a year later, fed up with what they perceived as the appointment of too far right leaning activist judges, Democrats in the Senate staged an almost unprecedented revolt over the appointment of Robert Bork. Following a long and bloody battle Bork withdrew his name and a more moderate Anthony Kennedy was confirmed in his stead, but the religious right has never forgiven this action.

Conservatism has ceased to be about political considerations and instead has taken on the "social conservative" (read Christian) mantle. Where the court had previously been stacked to favor reasonable, moderate interpretations of the law with an emphasis on protecting the rights of the individual, we soon saw an abrupt turn to this rigid, authoritarian "new" right and an implementation of decisions favoring "family values."

George H.W. Bush appointed the inscrutable Clarence Thomas to replace the moderately progressive Thurgood Marshall, and although Democrats in the Senate worked hard to “Bork” him, Thomas was confirmed in 1991. 

Over his eight years in the White House Bill Clinton was able to hold the line with appointments of progressives Ruth Bader Ginsburg and Stephen Breyer to replace the equally liberal Byron White and Harry Blackmun. Yet in 2000 it was this somewhat moderate Court that gave us Bush V. Gore. Rehnquist, Scalia and Thomas, reluctantly joined by moderates Kennedy and O’Connor effectively negated a popular vote and elected a President.

The real turn in the Court came in 2005 when George W. Bush nominated John Roberts first to replace the retiring associate Justice Sandra Day O’Conner, and then as Chief Justice replacing the retiring William Rehnquist. O'Connor was a somewhat left leaning moderate, and Roberts' political views made even Rehnquist look middle-of-the-road.

Bush immediately followed these actions with the nomination of Samuel Alito, Jr., arguably the most reactionary Justice ever to hold the position. The Court was now stacked with four hard right justices, four others to the left, and Anthony Kennedy as the swing vote.

In the 2010 Citizens United v. Federal Election Commission decision Kennedy joined conservatives Roberts, Alito, Scalia and Thomas to grant “personhood” to corporations. Both this decision and Bush v. Gore raised a hue and cry from the left, yet it remains common for the right to accuse the Court of left-leaning judicial activism.

This obviously is an unfair characterization. The term could more accurately be defined as any decision made by any judge that does not agree with the particular view of one of the parties in the case. It swings both ways.

It is politicians who speak in terms of majority. Constitutionalists couch arguments in terms of reason and fairness. Judicial activism is in the eye of the beholder.