The fun is back in national politics, as the right grapples with the first big moment of the Obama administration--the nomination of Sotomayor to the Supreme Court. She's a great pick in terms of both qualifications and political savvy, and it's been interesting (and, I would say, enlightening) to watch the debate of how the confirmation process will go. But I've also enjoyed listening to the old debates about the judiciary, and my hope is that the confirmation hearings will highlight this issue more.
For me, the most interesting piece on this came from the Wall Street Journal online. Titled, "Republicans, Let's Grow Up," this editorial calls for a thoughtful and articulate conservative critique of Sotomayor. The argument is that this is an opportunity for Republicans to ask important questions about the role of the judicial branch, an argument the WSJ believes that the GOP can win.
I find this fascinating, in part because it stands in such stark contrast to my experience with the Republican party. I have known the party of Gingrich and Limbaugh and Cheney, the bucolic, loud, angry old white men who seem to view government as some sort of bogeyman that wants nothing more than to take away their assault rifles, abort babies indiscriminately, and take all of their wealth in the form of taxation. I have never known a thoughtful, articulate conservatism.
In particular, the use of the phrase "judicial activism" has always bothered me. So too has "legislating from the bench." Both of these strike me as hollow rhetoric meant to demonize an entire (and vital) branch of American democracy. In my mind, a judiciary must be activist, because anytime a law is overturned or ruled unconstitutional, action has been taken. and if a court cannot make those sorts of decisions, then the courts are of no use.
For example, let's assume that a group of states in a particular region of the country wanted to keep a large group of people from voting, attending schools with the majority group, or patronizing certain establishments, the legislative and executive bodies of those states would pass and enforce discriminatory laws aimed at alienating those citizens. This would leave the only recourse for justice in that hands of the court. Thus, Brown v. Board of Education came to be.
An of course conservatives believe in judicial activism. They've been working for decades to overturn Roe v. Wade, which is only possible through a judicial reinterpretation of that decision and the overturning of precedent (admittedly, a constitutional amendment would do the trick, but the founders made that process intentionally difficult, so a revision to the foundational document of the nation banning a rare medical procedure is, shall we say, unlikely). But it would take a very activist judge to find any state's restrictive abortion ban constitutional.
Likewise, any time a court strikes down a municipal or state gun-control law as being overly restrictive of second amendment rights, that court is being activist, but you don't hear the right-wing demagogues shouting down such decisions. Truly, "activism" is a relative and meaningless term.
So, let's hear the arguments. What is the role of the judiciary, and how should judges interpret the constitution?
5 comments:
I think this guy says it better than I can:
"Courts should not intrude into areas of policy making reserved by the Constitution to the political branches ... To the extent the term judicial activism is used to describe unjustified intrusions by the judiciary into the realm of policy making, the criticism is well-founded. At the same time, the Framers insulated the federal judiciary from popular pressure in order that the courts would be able to discharge their responsibility of interpreting the law and enforcing the limits the Constitution places on the political branches. Thoughtful critics of 'judicial activism' — such as Justices Holmes, Frankfurter, Jackson, and Harlan — always recognized that judicial vigilance in upholding constitutional rights was in no sense improper 'activism.' It is not 'judicial activism' when the courts carry out their constitutionally-assigned function and overturn a decision of the Executive or Legislature in the course of adjudicating a case or controversy properly before the courts. ... It is judicial self-restraint, however, that confines judges to their proper constitutional responsibilities.
—Chief Justice John Roberts"
The problem I have is the judicial self-restraint... I don't have the answer to the problem myself, but I feel that there needs to be some sort of check on these judges. As it stands they have a lot of power and little accountability.
-Jon
Age is supposed to bring with it wisdom and the softer, more subtle voice of counsel. I am not sure why this has not happened in the case of Gingrich, Limbaugh, Cheney, etc. Perhaps they've entered the second childhood phase of their lives. Loud and angry belongs to children who have not yet learned the art of effective persuasion and communication.
Obama, in his Inaugural Address, stated "We remain a young nation, but in the words of Scripture, the time has come to set aside childish things."
Jon, good quote. I fear, however, that this is just an exercise in semantics--"vigilance" vs. "activism." It all seems very subjective. But the question of accountability is valid. We want an independent judiciary, but a responsible one.
Pat, that's a great critique of the rabid right. And from a Utahn (sp?) even...
I want to add my two cents. I hate the idea that activism is pejorative. What a horrible thing for a branch of government to be labeled bad for doing their constitutional duty. The problem I see is legislators and their media allies can attack judges who through their rulings point to the inherent flaws of inaction in our legislative process.
Gay marriage is the great example of this. Without delineating that marriage is defined as male and female (or in the case of Utah male and female and female and female :)), there is no legal reason to say that two men can't marry. If it was in the public good to ensure the preservation of "opposite marriage" than legislators should have passed laws/amendments to state constitutions defining marriage as such.
In the absence of such legislation how could a judge rule such a union illegal or that the state had a right to suppress the rights of married gay couples. Insofar that state legislators were proactive in passing legislation defining marriage as solely heterosexual, I have a harder time with courts abrogating those laws despite my personal feelings on the matter.
In the end it seems that the few are blaming the courts for their own inaction. Our legislatures are woefully beholden to special interests and self interest to the point where they're catatonic on important legislation. This is why it has been left to the Courts to intrude in "policy making".
Stew,
While I agree with the overall trajectory of your comment, the apologetic nature thereof is a bit problematic. The judicial branch is not simply filling the gaps left by an inept legislative; it is fulfilling the very purpose of its existence. But the same-sex marriage example is a good one for this discussion.
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