Tuesday, November 01, 2005


A Necessary Debate

Liberals seek to redefine the term 'activist judge'

The Dailykos links to this New York Times op-ed which tries to redefine the term 'activist judge:'
When Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.

In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy.
It is ridiculous to claim that this measure is a 'reasonably objective and quantifiable measure of a judge's activism.' Its true Congressional acts 'can be presumed to possess a high degree of democratic legitimacy.' So what? This has nothing whatsoever to do with whether such acts are constitutional, which is for the Supreme Court to decide. Declaring an act of Congress unconstitutional is not the most brazen thing judges can do; making policy is. That is how 'activist' judges behave, and the lower courts are filled with them.

The article continues:
We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O'Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.
This particular conclusion is preposterous. What the data really suggest is that conservative justices are prone to more strictly interpret the constitution in accordance with its original meaning. This is nothing less than an effort by the authors to spin the term 'activist judge' to mean hostility toward the liberal concept of a 'living constitution' among present and prospective Supreme Court justices.

I am glad to see that this and the proper role of the judiciary will at least be part of the debate surrounding the nomination of Judge Alito. George Will gets it right:
Our nation properly takes its political bearings, always, from the Constitution, properly construed on the basis of deep immersion in the intellectual ferment of the Founding Era that produced it. That is why our democracy inescapably functions under some degree of judicial supervision. The nation has long needed a serious debate about the proper nature of that supervision. And the president needed both a chance to demonstrate his seriousness and an occasion to challenge his Democratic critics to demonstrate theirs in a momentous battle on terrain of his choosing. The Alito nomination begins that debate.
This is the debate the country has needed for several generations: Should the Constitution be treated as so plastic, so changeable that it enables justices to reach whatever social outcomes -- ``results' -- they, like the result-oriented senators who confirm them, consider desirable? If so, in what sense does the Constitution still constitute the nation?

This is a debate the president, who needs a victory, should relish. Will it, as Democrats mournfully say, ``divide' the country? Yes. Debates about serious subjects do that. The real reason those Democrats are mournful is that they correctly suspect they are on the losing side of the divide.

(Note: I accidentally posted this while it was still a work in progress. The final version is, I think, only sightly different from the first one I posted. Sorry if this caused any confusion.)

UPDATE: Judicial activism defined:
The view that the Supreme Court justices (and even other lower-ranking judges as well) can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges' own considered estimates of the vital needs of contemporary society when the elected "political" branches of the Federal government and/or the various state governments seem to them to be failing to meet these needs. On such a view, judges should not hesitate to go beyond their traditional role as interpreters of the Constitution and laws given to them by others in order to assume a role as independent policy makers or independent "trustees" on behalf of society.
More from an March AP article (no link):
In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court's 5-4 ruling March 1 to outlaw the juvenile death penalty based on "evolving notions of decency" was simply a mask for the personal policy preferences of the five-member majority, he said.

"If you think aficionados of a living Constitution want to bring you flexibility, think again," Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility." "Why in the world would you have it interpreted by nine lawyers?" he said.

Scalia, who has been mentioned as a possible chief justice nominee should Chief Justice William Rehnquist retire, outlined his judicial philosophy of interpreting the Constitution according to its text, as understood at the time it was adopted. Citing the example of abortion, he said unelected justices too often choose to read new rights into the Constitution, at the expense of the democratic process. "Abortion is off the democratic stage. Prohibiting it is unconstitutional, now and forever, coast to coast, until I guess we amend the Constitution," said Scalia, who was appointed to the court by President Reagan in 1986.

He blamed Chief Justice Earl Warren, who presided from 1953-69 over a court that assaulted racial segregation and expanded individual rights against arbitrary government searches, for the increased political role of the Supreme Court, citing Warren's political background. Warren was governor of California and the Republican vice presidential nominee in 1948. "You have a chief justice who was a governor, a policy-maker, who approached the law with that frame of mind. Once you have a leader with that mentality, it's hard not to follow," Scalia said, in response to a question from the audience.

Scalia said increased politics on the court will create a bitter nomination fight for the next Supreme Court appointee, since judges are now more concerned with promoting their personal policy preferences rather than interpreting the law. "If we're picking people to draw out of their own conscience and experience a 'new' Constitution, we should not look principally for good lawyers. We should look to people who agree with us," he said, explaining that's why senators increasingly probe nominees for their personal views on positions such as abortion. "When we are in that mode, you realize we have rendered the Constitution useless," Scalia said.
Via James Joyner, who comments:
[S]trict constructionists don't argue that the courts should always bow to the majority. Rather, they argue that the elected leaders in the legislative and executive branches are empowered to make public policy so long as it doesn't exceed the powers granted to those bodies by the Constitution. So, if a majority enacts an ex post facto law, bill of attainder, requires citizens to quarter troops during peacetime, grants government employees the right to search citizens without a warrant, etc., etc., etc., the courts have the duty to strike such laws down. By the same token, if "marriage" was restricted to relations between one man and one woman during the time when a constitutional provision was enacted and allowed to mean that for generations thereafter, it's rather clear that the law so permitting is not unconstitutional. Laws may be poorly thought out, outmoded, silly, offensive, or otherwise objectional without violating the Constitution.
UPDATE II: Here's an example of liberal judicial activism.


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