Reader Request Week 2006 #5: A Political Judiciary

Activist judges everywhere! Ohako asks:

“When did the judiciary become so political? Activist judges here, there, and everywhere!!

I once sat on a jury, and when we were done, we explained our verdict a little to the judge. He didn’t care, and I was impressed because I realized that it was his job not to care, one way or the other. His duty was to render fair justice, without any personal bias at all.

So why is it now that being a judge, at any level, seems to be another Red State/Blue State dichotomy thingy? Rather than being just another technical sort of job?”

Well, Ohako, to the first, the phrase “activist judge” is crap propoganda. “Activist judge” is the rhetorical bludgeon that the right-wing folks currently in power have decided to use any time a judge gives a ruling that doesn’t fit their agenda. As I’ve said before, the most “activist” ruling of the last decade, if we’re talking about the judiciary thwarting the will of the people, was the Supreme Court ruling that gave the presidency to George Bush. Yet no one seems to be calling Antonin Scalia an “activist judge.”

Having said that, “activist judge” is a brilliant rhetorical phrase, because regardless of its relationship to reality, it allows its users to describe their enemies in ways that both put their enemies on the defensive and also gull the unsophisticated masses. Most people don’t know or understand the role of the judiciary, nor understand (at the federal level at least) that it is explicitly designed so as to be insulated from the day-to-day electoral and political pressures the other two branches of government face. Complaining that “activist judges” are not responsive to the “will of the people,” particularly when that “will” is expressed by the political “want” list of the executive or legislative branches (even if both branches are currently polling below 40% approval) is in many ways complaining that the judges are doing their job as defined by the Constitution. But most people don’t get that; they turn on the talk radio and listen to bloviating right-wing lard brains model a version of separation of powers that has absolutely nothing to do with Constitutional reality.

Those in power know the model they’re promoting to the politically unsophisticated is a bad one, and what should be particularly galling to the people they’re selling this Constitutional snake oil to is that in reality, those in charge on the right don’t actually want the judiciary to be more politically responsive and less “activist” — otherwise Bush wouldn’t be so busy trying to jam people onto the Supreme Court (and into lower courts as well) whose political and judicial theories are far to the right of the general population. The Bushies rely on the staying power of an insulated judiciary to extend their political agenda long after Bush will be out of office — and indeed hope that these judges will be “activist” in their political direction, batting back the electoral will with their own unique view of US Constitutional law.

This is par for the course for the Bushies and their right-wing fellow travelers who prize their unchecked power over the constraints of the Constitution and whose theory of politics is best described as “feckless,” since the same right-wing bootlickers who are busy eviscerating the Constitution for the benefit of Bush today will the ones climbing the ramparts to take it all back if a Democrat gets elected president in 2008. There is no political theory on the right today; there’s just what they think they can get away with. This is sad for Republicans and conservatives who actually do prize the US Constitution and the rule of law, of course. Maybe next time they’ll run a presidental candidate who can actually think. In the meantime, of course, the monkeys are in charge, and they can take comfort take that the morons on the left are so ineffectual that they can’t actually get it together to counter a phrase as politically vapid as “activist judge,” much less counter any of the concrete violations of the Constitution currently taking place.

Now, before it looks as if I am blaming every bad thing ever on the Bushies, let’s review US history, in which we find that presidents have ever played politics with the federal judiciary. Indeed, one of the great Supreme Court rulings, Marbury v. Madison (which established the right of the Supreme Court to be the Supreme Court as we understand it today) arose because outgoing president John Adams created a bunch of judicial positions and packed them with his political fellow travelers in an attempt to thwart the political plans of Thomas Jefferson, who had just crushed Adams in an election. Closer to our own time, and on the recognizably opposite political end of the spectrum from the current Bush administration, Franklin Delano Roosevelt in 1937 tried to get around a Supreme Court hostile to his New Deal by proposing to add a Supreme Court justice for every sitting justice over the age of 70 (thereby allowing FDR to appoint judges sympathetic to his politics). This didn’t fly, but it seems to have scared the then-sitting judges into allowing some New Deal provisions they seemed otherwise to be ready to bounce. For the record, I find FDR’s (and Adams’) attempts at court-packing fairly loathsome; say what you will about Bush, but his people aren’t imaginative enough to pull stunts like these. But the point to be made here is that being political about judges really is nothing new.

Are today’s judges “activist” — meaning they arrogate to themselves the powers that should reside with the other branches of government? By and large, I think not — I believe the majority of federal judges, even the ones whose judicial philosophies I disagree with, try to do their job faithfully and in accordance to the Constitution (moreover I also suspect that state and local judges do the same under the laws by which they rule). What is different — at least in very recent time — is that currently the right wants to suggest the judiciary is unchecked, arrogant and politically-minded. But inasmuch as many of the rulings decried as the result of “activist judges” are legally rigorous and sensibly ruled — just not what the folks on the right wanted — it’s pretty transparently partisan whining.

When will the howling about “activist judges” die down? I suspect when and if people come to power who understand that the role of the judiciary under the US Constitution is not, in fact, to let the president do everything he wants to do because he feels like it’s something he wants to do. In other words, when people come to power who actually respect the US Constitution.

(Have a question for Reader Request Week? Submit it here)

27 thoughts on “Reader Request Week 2006 #5: A Political Judiciary

  1. John,

    I’ve got a question/comment formulating in response to your post here, but in order to crystalize it, I need to know… what is your position on the ‘living Constitution’ philosophy?


  2. Things change in 200 years. Basically the whole context the Constitution was written under has changed. Trying to maintain an uber stict interpretation of the Constitution seems as silly as Biblical Fundies not eating Pork or wearing poly-cotton blends because it was bad 2000 years ago.

  3. I remember a quote from somewhere, describing the whole “activist judge” issue:

    If both sides keep using ‘activist’ to describe rulings they do not like, one could easily substitue the word ‘poopyhead’.

  4. Brian:

    “what is your position on the ‘living Constitution’ philosophy?”

    Inasmuch as “living Constitution” is a phrase with political freight — and freight that changes considering who is using it — you’d need to tell me what you think “living Constitution” means before I could comment on it.

    Strictly speaking, of course, the Constitution “lives” to the extent that it can be amended, and as a practical matter, I am glad the amendment process is as difficult as it is.

  5. You make a fair point. I was considering clarifying my meaning, but I wanted a response from you without any prejudicial influences of the wording of my question. You say:

    Strictly speaking, of course, the Constitution “lives” to the extent that it can be amended, and as a practical matter, I am glad the amendment process is as difficult as it is.

    And I agree with you. And yes, the explicit wording of the Constitution has correspondlingly only been changed by amendments ratified by the Constitutionally established process. However, given how various things (abortion, etc.) have developed over the past few decades, the scope of this question has grown considerably.

    The debate over this topic (the role of the judiciary) strikes me as one of many examples of how left/right arguments today get fouled up as a result of poor definition of the scope and fundamental assumptions of debate. The real question I see here is, “What is the appropriate role of the political views of sitting justices in the decisions that they make?” In the post John says, “Are today’s judges ‘activist’ — meaning they arrogate to themselves the powers that should reside with the other branches of government?” The way issues are being presented currently, this question is a matter of individual opinion…should the issues of euthanasia/right to die, abortion, gay marriage, etc. be decided in the courts, or elsewhere in the system?

    For example, is the entire institution of marriage a fundamental right, implicit in the wording of the Constitution, that should be guaranteed nationwide to any two persons, regardless of orientation, etc.? Or is it a cultural and legal construct that is best regulated via state and local legislation? (Woo, federalism!) The problem I have with things as they are now is that it seems like too many of these high-profile, charged decisions are being made in the judiciary (often at the national level), when they’re things that, in the democratic-republican system like we’re supposed to have, should be decided legislatively at the state or local level.

    Basically, I think that before we can answer the question of whether the judiciary is overstepping its authority, there needs to be a point of consensus about what that authority actually is, and I think that this consensus is strikingly absent in much of the current debate.

  6. “Activist judge” is not a very good way to frame the issue, because any judge who makes a ruling – i.e., every judge – is thereby acting. Every judge is an activist judge unless he hides under his bench and never says anything. More helpful is to distinguish between judges who have a well-reasoned approach to statutory and constitutional interpretation, and who apply that approach consistently regardless of the result, versus those who decide what result they want and then pick and choose an approach to get there. People can have a principled disagreement with a judge of the first sort over his approach to the law and still have respect for the judge’s integrity. The second sort of judge is just acting like a member of an unelected House of Lords, vetoing legislation because of political preference – and that subverts the judicial role.

  7. Obligatory Dave Barry: “Bloviating right-wing lard brains” is a great name for a band.

    I’d like to hear from some of those Republicans and conservatives who respect the Constitution. I’d like them to be more vocal. I’d like to hear ‘em quote Barbara Jordan. (If I took bets on the probability of this, I could buy up Warren Buffett.)

  8. A question I have is: “When does an issue reside with the states and when does it reside with the Union?”

    Why is marriage a state-based right, but abortion isn’t? Where does the line get drawn? Is it only where the constitution and amendments say it is? Is it only determined by whether it crosses established canon (such as the 1st amendment) and is then subject to national challenge? It seems a very thorny question.

  9. WizarDru:

    Why is marriage a state-based right, but abortion isn’t? Where does the line get drawn?

    If I’m remembering correctly (and I’m not a constitutional scholar, so I could easily be mistaken), the Constitution actually states that any matter not specifically placed under national-level jurisdiction automatically defaults to the states. So, as far as I’m concerned, abortion should be a state-based issue. Roe v. Wade and the following Doe case (don’t remember the full case citation) were basically an end-run around the federalist approach on this issue.

  10. er, that should be “…any matter not specifically placed under national-level jurisdiction by the Constitution…”

  11. Brian:

    “The problem I have with things as they are now is that it seems like too many of these high-profile, charged decisions are being made in the judiciary (often at the national level), when they’re things that, in the democratic-republican system like we’re supposed to have, should be decided legislatively at the state or local level.”

    First, point of order, which is that I hope you’re intentionally leaving the capital letters off “democratic-republican,” because otherwise you can imagine me rattling off a lecture about how political parties have nothing to do with the structure of our government. Also, more precisely, the US is a federal republic, and the representatives of that government are currently selected through direct democratic means (excepting the President — hello, electoral college!). This is me picking nits, but then picking nits is what this is about.

    Second, the implication here seems that the judicial branch is in itself deciding to take on laws it doesn’t like. However, with the exception of the Supreme Court (which can choose to let an appelate court decision stand), the courts don’t choose the cases that come before them; suits are filed and the courts are obliged to rule. One could, I suppose, attempt to work it so that certain laws or decrees are not subject to judicial review — indeed, the Bush administration has tried to make that argument a number of times recently, without persuading the Judicial system of the wisdom of that. Speaking for myself, however, I’m not entirely sure I’m a fan of not having judicial review.

    On the Supreme Court level, the fact that many of these cases are “high-profile” is tautalogical, since any case the SCOTUS takes on has national implications; by definition, Supreme Courts rulings are of national importance. I don’t know that I necessarily agree that there are too many of these sorts of things being adjucated in the courts (particular in the Supreme Court, whose billet over the years has decreased dramatically — suggesting among other things that there are a lot of potentionally “high profile” cases it chooses to skip), or that the courts are an inappropriate venue. Indeed, Marbury v. Madison established the right of the courts to conduct judicial review, and that’s a precedent that is now over 200 years old and which has been generally respected (see Andrew Jackson and Abraham Lincoln for notable exceptions), and the precedent reaffirmed constantly. Generally speaking the court is not doing anything that it’s not been doing for a couple centuries now.

    Now, it is certainly the case that the Supreme Court can hand down decisions that one may feel are legally or morally suspect — Dred Scott v Sandford is a classic example of this, and is often seen as a predicate cause for Amendments Thirteen through Fifteen. Rather less sensationally and closer to our own time, the ruling of Kelo V. The City of New London has been causing local and state government to revise their laws on eminent domain. And of course Roe v Wade is a bundle of fun. But as to whether in these or any other controversial cases the judiciary is overstepping its bounds, generally speaking, I think not.

    In my opinion almost all of the current complaints of “legislating from the bench” stem from Roe v. Wade, thanks to its cobbling together a right of privacy from various Amendments rather than pinning its ruling directly on the text itself (which would have been possible, I think, just harder). Whether one agrees with the ruling, or simply agrees with its outcome, it’s not at all difficult to accept the convoluted legal reasoning on the ruling left the decision open to accusations of being end-run legislation.

    Leaving aside Roe v. Wade and successive rulings based on it as precedent, however, it’s rather more difficult to make the same accusation to other rulings and make it stick. For example, Lawrence v. Texas was decided specifically on the 14th Amendment (and on due process), while Kelo v. City of New London was decided on the 5th (takings clause). Depending on who you are, both of these smack of “activism,” but I think both are well within the purview of judicial review.

    Speaking personally, I prefer when the SCOTUS (and other judges) stick to the text of the Constitution to make their rulings, even when I don’t like their rulings. By the same token, however, when SCOTUS (and other judges) make rulings I don’t like, my first inclination isn’t to accuse them of legislating from the bench. I believe they should be assumed to be performing judicial review until unless explicitly shown to be doing otherwise.

  12. John, you always leave me with lots to think about, and I appreciate that.

    And yes, leaving off the capital letters was intentional – I noticed that coincidence in my choice of words but decided not to note it explicitly. :-) No disagreement here on the nitpicking/point of order.

  13. Also, since you mentioned Kelo v New London, I wrote a piece in my (sadly under-maintained) blog about how Kelo might relate unfavorably to OH Issue #1 that passed last November (link)… do you think this has any potential for concern? (The Issue #1 part starts about halfway down the post.)

    Thanks again!

    And BAH!! What happened to my name on that last ‘Anonymous’ post? >:-<

  14. $Zero, the first link is somewhat appropriate but the second and third were just spam-like advertising, so I’ve gone ahead an excised them. Resist the temptation to post them again.

  15. should the issues of euthanasia/right to die, abortion, gay marriage, etc. be decided in the courts, or elsewhere in the system?

    This is more chaff of the kind John describes–thrown up by people who either don’t understand what courts do, or don’t want anyone else to understand what courts do.

    Because it pretends that the role of the courts is to make decisions, but only about safe, dull things, like fee simple determinables and the finer poitns of admiralty. The role of the courts is to interpret the law. Whether the subject of those laws is controversial is irrelevant.

    I keep running into people who gripe about “activist judges” ruling about Roe or same-sex marriage or the Pledge of Allegiance. When I ask those people “what about the court’s reasoning was incorrect?”, ninety-nine times out of a hundred, they have no idea. They just know that they don’t like the result. They don’t have the slightest notion whether the court did or didn’t follow the law; they just figure if a court didn’t do the popular thing, it’s a bad court.

    And that attitude is exactly what “judicial activism” is all about.

  16. Whoops, missed this–John, Roe didn’t cobble a right to privacy together; that was from Eisenstadt and Griswold. What Roe did was to consider whether that already-established right to privacy outgunned the state’s interest in protecting fetal life (not, as many wish, a fetus’s right to life). Granted, the result was a mess.

  17. Sorry, John. When I reposted my sig thinger as a third comment, I hadn’t yet seen that you had allowed the first comment to go thru (and had deleted my second repost — the one without the sig).

    Then, when I saw that you allowed the first but deleted the second, it was too late, I had already reposted the thrid comment sig thinger. I figured that you would delete the redundant 3rd sig comment, but not the first — since you had yanked the first out of your filtering thing.

    Anyway, no spam, I just thought that the tangential satire (and the BS opportunity) in my sig would be appreciated by both you and your readers. Again, I didn’t see that you had allowed my first posting (only saw my second comment). So I broke the first comment up into two, figuring that your filter would automatically reject my original comment because of the multiple links.

    Yikes. What a lengthy explanation — my weakness. But just thought you should know.

  18. Without a closer reading of the comments, I dont’ know if I’m being redundant, but, wow, John, I’ve read almost exactly the same screed from conservatives about activist judges as you wrote as a liberal.

  19. Well, Cassie, wanting judges to base rulings on the text of the constitution is neither liberal or conservative;it’s just common sense.

  20. Judges do not exist to bow to the majority. They exist to protect the minority from illegal pressures by the majority. So if you define an “activist” judge as someone who doesn’t take majority opinion into account before ruling on the law, then all I can say is “Gimme more of those guys”.

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