(The upcoming hearings on Supreme Court nominee Samuel Alito make this an opportune time to dispel the persistent myth of liberal judicial activism.)
One of the most enduring, yet untruthful and damaging myths about “liberal” judges (any judge appointed by a Democrat, or those appointed by Republicans whom the religious right doesn’t like) is that they are “activists” who inject their ideological biases into court decisions in order to impose their values on society. As is the case with much right-wing propaganda, the truth is actually the opposite.
The first thing to note about judicial activism is that it is an ill-defined term. This suits the far right perfectly because they can sling it around without ever having to define it and make a reasoned case; more often than not, a decision that the far right doesn’t like is simply portrayed as a result of judicial activism while the actual merits of the case are ignored.
Earlier this year, two law scholars set out to actually define and measure judicial activism. Gewirtz and Golder defined judicial activism as a decision to overturn established law that had been decided by a legislature (either state or federal). Since the far right is always claiming that judges are usurping the will of the people, this definition, while imperfect, is both objective and quantifiable.
What Gewirtz and Golder discovered is that U.S. Supreme Court Justice Clarence Thomas is the most “active” at overturning established law, with Scalia a close third. Ginsburg and Breyer, the two most “liberal” judges, are ranked last at numbers eight and nine. In fact, both Scalia and Thomas decided to overturn established law with almost twice the frequency of Breyer and Ginsburg. I have yet to see anyone on the far right respond with a definition of their own to counter these findings.
Even more fundamental to the debate over judicial activism is the profound misunderstanding that many on the far right seem to have regarding one of the bedrock principles of our nation: minority protection from the whims of the majority. In a recent program on NPR two “conservative” activists (the quotes are used because the far right is in no sense conservative in the classic sense of the term) mentioned how the courts were imposing the will of elites on the rest of society, and they continually fell back on polling numbers that supposedly showed that the majority of Americans disagree with these judicial opinions.
But the Constitution, and hence the federal courts, does not give the majority the right to usurp the liberty and freedom of minorities just because they feel like it. Majorities in the South long believed that blacks should not be allowed equal rights, but the courts ultimately sided with the minority because the Constitution mandates “equal protection under the law”. According to “conservative” logic, the judges who ruled against Jim Crow laws and the broader post-emancipation doctrine of “separate but equal” were judicial activists. In addition, while large numbers of Americans may believe that humans and dinosaurs coexisted and that we are a “Christian nation”, the Constitution explicitly states that there shall be no state sanctioning of religion. This protects all religious views, even minority ones, as well as atheists and agnostics. Religious extremists can bemoan the lack of school prayer all they want, but if prayer in public schools isn’t a state sanctioning of religion I don’t know what is.
Another claim made by the far right (and Republicans in general) is that there is only one possible “original” interpretation of the Constitution and their judges know what it is, while liberals read all sorts of things into it. This betrays a lack of appreciation for the nuances of language. Consider the simple phrase, “equal protection under the law”. With respect to voting rights, what does “equal protection” mean? Does it mean that everyone should use the same voting equipment in order to secure an equal probability of having their vote counted? Since this conflicts with states’ rights on voting, what are we to do? What about those who have to work on Election Day versus those who don’t: is that equal protection?
Regarding the issue of gay rights, what does equal protection mean? Here the Lawrence v. Texas case is extremely instructive. In this case two men were arrested in their home when police barged in (based on the phony pretenses of a homophobic neighbor who was later charged with filing a false police report), and they were found to be engaging in gay sex. In Texas the “will of the people” had decried such an act and criminalized it. By the time the case was tried, the two men were in a Texas jail charged with having consensual gay sex in the privacy of their home. Here’s what Sandra Day O’Connor, a Reagan appointee, had to say about that case:
“A law branding one class of persons as criminal solely based on the state’s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review.”
This is clearly the correct ruling since this was certainly a case where the majority was unjustly tyrannizing the minority in a particularly cruel and oppressive manner based on nothing more than dislike (I may dislike rude and obnoxious people but I can’t have them thrown in jail). So what did Scalia, an “originalist”, have to say?
“Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive….Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best ... But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else.”
This utter disregard for the Equal Protection Clause and the stunning callousness with which Scalia believes the Constitution allows the majority to oppress a minority for nothing other than their dislike is stunning. In Scalia’s world, homosexuals should simply wait it out for a few decades (in prison perhaps) while the majority slowly begins to realize that their aversion to homosexuals is irrational. Fortunately, the Constitution says “equal protection” not “equal protection when people get around to it”. What is particularly disturbing about Scalia’s reasoning is that he believes it is the job of minorities to convince the majority that their very lives should not be criminalized.
In another ruling, this one by the Massachusetts Supreme Court, the Court decided that equal protection under the Massachusetts State Constitution means that one class of citizens, gays, cannot be denied the right to marry. Rather than the imposition of a gay lifestyle on the majority, this is nothing more than extending rights to a minority which has been denied those rights. What I continue to point out to members of the far right is that they should be trying to make the case that gays are second-class citizens who should not be entitled to the same basic rights as heterosexuals, since in fact this is what they are advocating. As obscene as it is, the proposed Constitutional Amendment to ban gay marriage is consistent with the far right’s beliefs--that discrimination should be the law of the land. Pretending that courts are over-stepping their bounds by declaring gays as equal Americans is ridiculous.
In summary, the far right and other so-called conservatives who berate judges they disagree with, labeling them judicial “activists”, are simply frustrated that their discriminatory views are not shared by the majority of the country’s judges and are not enshrined in the Constitution. They can argue all they like about what the majority wants, but the majority works through the legislature, not the courts, and the majority does not always have justice on its side. If their view of activism had held 50 years ago, blacks would still be denied the right to vote in the South, anti-miscegenation laws would still prevail, and school segregation would still be official policy. It would also be legal to jail homosexual adults in the year 2005 for having consensual sex in the privacy of their own home (so much for individual freedom and non-intrusive government), and underage children who engage in gay sex would be punished much more severely than those who engaged in heterosexual sex (the recent Kansas ruling). If “conservatives” truly advocate second-class citizenship for gays, they should come out and say it; if they truly advocate state sponsorship of religion, they should do likewise. They wrongly accuse liberals of using the courts to foist their morals on the country when this is exactly what they themselves are trying to do.
A few additional comments are in order. First, I am not claiming that only “conservative” judges engage in activism because “liberal” judges do as well (maybe not to the same degree, however). The law and the Constitution are open to interpretation, and reasonable people may disagree on these interpretations. But to claim, as some do, that conservatives have a direct line into the minds of the Founding Fathers is absurd. On a strictly empirical note, what I find most troubling about so-called conservative interpretations of the Constitution is that somehow their rulings always seem to side against minorities and the most vulnerable members of society, whether gays, the disabled, low-wage workers, endangered species, or women facing domestic abuse.
I’m sure that many on the right believe that their desire to outlaw abortion represents their attempt to protect a vulnerable population, i.e., the unborn; but as I have argued previously (here and here) the “pro-life” position is morally untenable and inconsistent. In addition, I have always been suspicious that outlawing abortion has more to do with controlling women and championing “traditional family-values” (i.e., women staying at home) than promoting the sanctity of life. The discovery that District Court Judge Alito was ruling that women must notify their husbands if they intend to have an abortion at the same time as the Pennsylvania legislature thought that it was not necessary for a man to notify his wife if he was infected with AIDs only confirms this view. In a society where women often have a hard time getting health insurance to cover contraception while men almost everywhere get free access to Viagra, I think such skepticism is warranted.
Bush’s nomination of Judge Alito to the Supreme Court should finally put to rest the right-wing hypocrisy that Republicans oppose judicial activism. They like activism just fine when it supports their ideology (For an excellent article on how the Alito nomination is Bush’s greatest flip-flop of all, click here.