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Who’s More Activist?

2010 April 16
tags:
by max

Last night I attended a talk with Jeffrey Toobin, CNN legal analyst and author of the The Nine: Inside the Secret World of the Supreme Court.  His remarks were essentially a rehash of the book’s main point: how the Republican party has changed dramatically over the last 40 years and how this new brand of Republicanism has changed the fundamental makeup of the Court and, in turn, constitutional law.

After his remarks someone in the audience asked him to address the notion of judicial activism — the controversial and difficult-to-define practice often involving the imposition of a judge’s own policy preferences or biases in the face of clear democratic majority will.  Toobin used the opportunity to argue the point that, contrary to popular belief, the liberals on the Court do not have a monopoly on activist decisions.  He points to the following conservative decisions recently handed down:

  • Parents Involved in Community Schools v. Seattle School District No. 1: The Court refused to permit school districts to assign students to schools based on race in order to achieve racial integration.
  • District of Columbia v. Heller: The Court held for the first time that the Second Amendment protects an individual right to bear arms and, in the process, struck down a 33 year old handgun ban in D.C.
  • Citizens United v. Federal Election Commission: The Court held that the First Amendment prohibited the restriction of corporate funded political broadcasts and, in the process, struck down a portion of McCain-Feingold.

Each of these cases involved the Court second-guessing democratic policy preferences.   But on the liberal side, Roe v. Wade and Lawrence v. Texas similarly involved the Court striking down democratic laws.  It’s very difficult to dub a decision as activist without implicitly voicing a preference as to the merits of the decision — conservative and liberal judges likely think that each others’ decisions are activist if they disagree with the outcomes.

I suppose the moral of this post, then, is that one judge’s activism is another judge’s unwavering fidelity to the law.  Or maybe it’s that the Court’s jurisprudence is simply policy masquerading as law.

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from → Law

  • msapozhn

    First and foremost, the term “activist judge” has become so popular a political derogative that its original meaning – opposite to originalist, a judge taking the law literally – is lost on many. I am, admittedly, as much an originalist myself as one can be without holding a law degree, and I cannot help but see every verdict of The Nine (sounds like Tolkien's Ringwraiths, doesn't it?) through the lens of literally-taken word of the Constitution.

    Do I agree with D.C. vs Heller? Yes, to the utmost degree. Free citizens' right to bear arms is granted explicitly by the Constitution and should not be denied or restricted by subordinate statutes and regulations.

    Do I agree with Citizens vs FEC? I am not sure. Corporate and union entities are not naturally entitled to citizens' rights, though they can be viewed as “conduits” for private free speech. There is space for some judicial will here. That said, I cannot help but root for the Supreme Court when it dares an open stand against the Chicago Machine.

    Do I agree with Lawrence vs Texas? Yes, I totally do, in spite of considering homosexuality a disgusting mental aberration. It is not, and should never be, the State's business to meddle with what two (or more) consenting adults do to pursue happiness in the confines of their private domicile.

    Do I agree with the epitome of all Supreme Court verdicts, Roe vs Wade? Yes and no. A woman's right to the pursuit of happiness supported by the decision clearly conflicts with the right to life of her unborn child – and it is, to quote Obama, “above my pay grade” to determine whether and when an unborn child is due any constitutional rights. In the least, I can see why the SC took on the issue rather than leaving it to states.

    So, I would agree with the post: the line between activism and originalism does not clearly run along the partisan divide. But let Obama make a few more appointments, and it will.

  • msapozhn

    First and foremost, the term “activist judge” has become so popular a political derogative that its original meaning – opposite to originalist, a judge taking the law literally – is lost on many. I am, admittedly, as much an originalist myself as one can be without holding a law degree, and I cannot help but see every verdict of The Nine (sounds like Tolkien's Ringwraiths, doesn't it?) through the lens of literally-taken word of the Constitution.

    Do I agree with D.C. vs Heller? Yes, to the utmost degree. Free citizens' right to bear arms is granted explicitly by the Constitution and should not be denied or restricted by subordinate statutes and regulations.

    Do I agree with Citizens vs FEC? I am not sure. Corporate and union entities are not naturally entitled to citizens' rights, though they can be viewed as “conduits” for private free speech. There is space for some judicial will here. That said, I cannot help but root for the Supreme Court when it dares an open stand against the Chicago Machine.

    Do I agree with Lawrence vs Texas? Yes, I totally do, in spite of considering homosexuality a disgusting mental aberration. It is not, and should never be, the State's business to meddle with what two (or more) consenting adults do to pursue happiness in the confines of their private domicile.

    Do I agree with the epitome of all Supreme Court verdicts, Roe vs Wade? Yes and no. A woman's right to the pursuit of happiness supported by the decision clearly conflicts with the right to life of her unborn child – and it is, to quote Obama, “above my pay grade” to determine whether and when an unborn child is due any constitutional rights. In the least, I can see why the SC took on the issue rather than leaving it to states.

    So, I would agree with the post: the line between activism and originalism does not clearly run along the partisan divide. But let Obama make a few more appointments, and it will.