Some Encouraging News For Fans of the Separation of Powers

According to this CNN poll, “Sixty-seven percent of 1,013 people surveyed by Opinion Research Corp. on behalf of CNN said federal judges — and the decisions they make — should not be subject to more control.” Yay, Americans! You’re getting your sanity back! It does seem like the phrase “activist judges” and much of the demogogic, unconstitutional rabble-rousing that accompanied it has lost some of its savor recently; likewise, I don’t think the folks who have been planning to use the recent ruling in New Jersey to pump some life into the phrase are finding it particularly useful at this point in time. I am naturally delighted about this.

Leaving aside the on-the-ground red v. blue politics at the moment, I’ll tell you honestly that one of the more heartening things about this political cycle is the felling that I get that people of most political stripes are backing away from the precipice. This is to say they’re taking a good look at Constitutional structures like separation of powers and seeing them as features, rather than as bugs, which is how they’ve been generally labeled over the last few years.

This feeling is entirely anecdotal; I have no proof of it, and what proof we’ll get of it will take time to arrive. But let’s say I’m cautiously optimistic. I feel like someone with a flooded house, who notices that the water level is two inches off the high water mark and sees blue sky out the window. I’ll worry about the flood damage later; just the hopeful thought that the water is coming down is enough for now.

24 thoughts on “Some Encouraging News For Fans of the Separation of Powers

  1. Indeed.

    Not only are most of us suffering from voter fatigue, but also politics fatigue, and honestly, government fatigue; this coming from a guy who is slighly to the libertarian stripe but generally independent.

    I disagree that the term ‘activist judges’ is demagogic, and find it comforting that the citizenry would take any judge to task for inserting a political or personal agenda into a ruling.

    This goes for judges on either side of the political fence. A fundamentalist jurist is as frightening to me as a judge from the Ninth Circuit.

  2. Kevin R:

    “I’m all for gay marriage, but shouldn’t this go through the regular legislative process?”

    In the case of New Jersey, the Court determined — as per its role — that the state constitution required equal rights for committed same sex couples, and left it to the Legislature to achieve a solution. So in this case it appears that it will go through a regular legislative process.

  3. Or, it will result in a constitutional amendment, if the court acted too far outside mainstream public opinion. Usually, though, courts are pretty savvy about how far they can go without serious backlash, especially for ostensibly non-political bodies.

  4. NOTE: Mr. Scalzi, if this is too long, feel free to shorten it as you see the necessity.It seems that the real problem is not looking at what actually happens in a court case. If you listen to certain radio people, you get the impression that gay couples went to court, said “We want to get married,” a judge said, “I agree, let’s change the law” and the deed was done. But that isn’t the story.There was an attempt to get an “Equal Rights Amendment” added to the US constitution, but it failed. I am not interested in getting into a big political fight about why it failed; that is in the past. The point is, many states added a very similar Equal Rights Amendment to their constitutions. This made it unconstitutional, in those states, to treat males and females differently except in the few cases where there is a real difference. A man cannot get pregnancy leave, no matter how loudly he screams that he deserves it, for instance.In some of these states, gay couples have gone to court for equal treatment. They alleged that under the state constitution, if a man has a right to marry a woman, then a woman has a right to marry a woman, and that to deny that right is unconstitutional. Some states have agreed, some have not. The court was not creating legislation, it was ruling on a specific case brought before it.It is like a major celebrated case from quite a few years ago. People who rarely read anything but the sports page railed against activist atheist judges for outlawing prayer in schools, when no such thing happened. The State of New York decreed that every public school student would recite a non-denominational prayer at the beginning of every school day. The mother of two students went to court arguing that her students had their rights violated by being forced to acknowledge in public the existence of a god that they did not believe in. The court agreed (I think rightly) that the state had violated their rights and ordered the required prayer stopped. All the stories you hear about a student being suspended because he said a silent prayer before lunch are due to individual school overreaction, or are sometimes wild tales that never happened.Shouldn’t the public get to vote on these issues? I say no. Human rights should not be subject to a public vote. If that were true, slavery might still be a fact of life in the south, and segregation certainly would be. Some black baptist ministers who demand public votes on civil rights issues would do well to think about that.Should judges be elected, or subject to legislative re-approval? I say not. The founding fathers deliberately made selection of federal judges far removed from public election so that they would not be forced to be subject to every whim of public opinion. If federal judges could be thrown out of office by a congress that disagreed with them, we would have total chaos. Suppose democrats take control of congress after this election. Should they have the right to kick out every judge nominated by a republican president and approved by a majority-republican senate? If so, they would need to replace them with a whole new slate of judges, who would then be thrown out the next time republicans take control again.The federal judiciary is independent of congress and the president, and it should be. They have a role in selecting judges in the first place, but that is where their rold ends, according to the constitution. And that is as it should be.

  5. Jon: Good post, and quite thoughtful.

    One quick follow-

    First, if we’re not voting on Human Rights, and allowing judges to make the call, then we should make damn sure that those jurists are there to support the Constitution and not an outside agenda.

    I know Scalzi doesn’t like the term ‘activist judges’ but they do exist, to both extremes.

    It would be easy to point out liberal jurists, so I’ll illustrate it with a conservative.

    Remember the guy in Georgia that fought to have the ten commandments in his court room? His Christian beliefs drove his actions, and he spent piles of public money fighting for his ’cause.’

    And this coming from a moderate Methodist guy who sees no problem with biblical ornamentation. But I don’t want judges using Christianity to prove a political point.

    I’m in a huge hurry today and don’t have time to edit…hope my point makes sense.

  6. There should be some legitimate debate on the scope of the judiciary’s power, and about what “deciding the constitutionality” of something means. For instance, from Lincoln’s First Inaugural Address:

    “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.”

    I concede that in recent years, Lincoln has been on the losing end of this debate. And look what happened when he bucked the Supreme Court then.

    Maybe both branches need to back off a little? If legislatures reduced the extent to which they seek to meddle in our lives, there would be less call for judicial intervention, too….

  7. Scott Mactavish:

    “I know Scalzi doesn’t like the term ‘activist judges’ but they do exist, to both extremes.”

    I don’t doubt there are judges who subvert the law to their own ends. However, there is a difference between that, as Judge Moore did, and ruling in a fashion which merely displeases those in power, which is how the term was generally applied.

  8. I disagree that the term ‘activist judges’ is demagogic

    It is, because it is not really used to mean activist judges, but judges who make rulings displeasing to the reactionary right–even if those rulings scrupulously adhere to existing law.

  9. mythago writes that activist judges are “judges who make rulings displeasing to the reactionary right–even if those rulings scrupulously adhere to existing law.”

    My guess is, that if Republicans maintain presidency and Senate (in the long run, maybe not for this next cycle), “activist judges” will come to displease the left almost as often as they displease the right. Then it will finally be time to decide as a nation if the judiciary is really going to be just another political branch, or if judicial restraint should actually mean something regardless who is in power.

  10. Chang – most likely in early 2009, or thereabouts. It seems unlikely that the Democrats will have enough control of both houses of Congress to get an actual impeachment going after next month’s elections, so we’re probably gonna have to wait for a new President.

  11. CJ, I think you misunderstand. “Activist judges” is like “family values”–it’s a reactionary and loaded soundbite. Commentators on the left have been complaining about right-wing judges who decide what they want to decide for some time now, actually.

  12. mythago, I wish those leftward commentators would adopt the soundbite, then. Maybe “activist judge” (regardless of what it’s called) could come to mean something real. I truly believe that there needs to be a discussion about constitutional interpretation that transcends whose ox is being gored.

  13. Steve,

    Speaking as a Coloradoan who has already cast her ballot, I can assure you of at least one big, fat NO on Colorado’s Amendment 40.

    My old Political Science professor gave me the best political advice I’ve ever heard – she said that if you want to know the real reason behind a political initiative, then “follow the money.” The money trail will expose the real agenda behind the initiative. This applies equally to candidates, referenda and amendments, and I’ve found it to be true in every single case I have applied it to.

    Words to live by -

  14. And here’s what blows my mind about Amendment 40, at least insofar as ostensibly conservative people support it:

    Our current Republican governor has been appointing moderately conservative judges for eight years, after twelve years of fairly liberal appointments by his predecessor. Amendment 40 is retroactive. Our next governor for the next four to eight years is almost certainly going to be a Democrat. (A fairly conservative one, but still, he’s not going to owe favors to the same People the present governor does.)

    So it seems to me the net effect of Amendment 40 will be to steer the appellate courts leftward for the next few years.

  15. Shouldn’t the public get to vote on these issues? I say no. Human rights should not be subject to a public vote.

    Jon, I just wanted to chime in and give you standing ovation for this–it’s the heart of why I get disgusted everytime someone talks about how issues to do with gay rights “should go through the legislative process rather than be decided by activist judges.” Historically, progress in the civil rights arena has overwhelmingly been made by judges ruling that popular legislation was unconstitutional.

  16. Nicole J. LeBoeuf-Little, I’m not sure your historical assessment is correct. Brown v. Board of Education is what schoolchildren learn about, but there are studies that indicate subsequent federal legislation had much more positive effect – the Voting Rights Act and the assorted Civil Rights Acts in particular. The nation was slowly gravitating toward a pro-choice position before Roe v. Wade ended all useful public debate and virtually created the modern Conservative movement. Court-ordered desegregation busing seems in retrospect to have had one of the worst cost-benefit ratios in history. Slavery was ended by force of arms and constitutional amendment. Federal women’s suffrage came about by constitutional amendment and persuasion necessary to enact it.

    Of course the courts have to rule against statutes that are repugnant to the Constitution. Maybe the same-sex marriage issue falls into that category, maybe not.

    Regardless, there is an advantage to going through the legislative process. It is tedious, slow, and frustrating, especially because people naturally want their rights right now. But once you win in the political arena, you’ve actually won – you’ve forged a political consensus that has percolated through the culture to general tolerance and even acceptance. In the long run, that matters more than victory by judicial fiat. It’s much harder to form a political consensus through a body that is supposed to be non-political.

  17. Theres a difference between control and oversight.

    Where that would lead though is beyond me, It’s always messy to start playing with this stuff. I think that the opportunity for impeachment should be made clear to every justice, but in my own ignorance of law, I can’t think of anything worthy of impeachment that has occured in the courts.

    I would say that I don’t like some of the decisions made by the court, but I most definately wouldn’t say that the “courts are out of control” thats more than a little alarmist.

  18. kevin r (and others who’re anti “activist judges”)- Take a look at various important Supreme Court judicial rulings and ask yourself where we’d be if we *didn’t* have judicial review on these things. For instance, can you tell me how long, and how divisive the racial intergration process in schools would have been had the courts not made the decision for the country?

    And more to the point, tell me how restricting the Judiciary from doing what it was set up to do, *and* keeping schools segregated is less important than having courts do thier jobs?

    If you’re going to bemoan the lack of legislative remedies that have been trumped by the courts, you have to apply that standard evenly, to *all* of them.

  19. CJ, if you’re equating the modern Conservative movement to the Religious Right movement, the actual impetuous of that was the proposed removal of the tax-exempt status of Bob Jones University, a couple of years after Roe v Wade. Once that was solved in the early Regan years, the Religious Right searched for a meaning and goal and finally latched onto reversing Roe sometime in the late eighties.

  20. Steve Buchheit:

    I’m sure you’re right about the roots of the religious right political movement. So I should change “Roe v. Wade ended all useful public debate and virtually created the modern Conservative movement” to “Roe v. Wade ended all useful public debate on abortion; the constitutionalization of abortion rights continues to galvanize the foot soldiers of the Republican party’s modern ‘big tent’ coalition.”

    I think the point of the comment is unaffected.

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