Last post on abortion ruling
OK, I’ve delayed long enough on returning to my previous post to discuss judicial activism. Having thought about this I have decided that the amount of reading I would have to do to make my argument is beyond my desire and current capacity, so I will refer readers to Mitchell J. Freedman’s blog entry listing some legal arguments against the Gonzales v. Cathcart decision, as well as pointers to other legal counter-arguments. It seems to this non-legal expert to be well-written and knowledgeable.
But the point I still want to make for myself is the one I raised originally. The justices of the Supreme Court made a number of far-reaching decisions, including the overturning of precedents that had survived several prior Supreme Court decisions and a concurring brief signed by Thomas and Scalia that, to many people including myself, looks like an invitation for anti-abortion groups to pepper the court with appeals against Roe v. Wade until the justices come across a submission that can be used to justify a reversal.
The point I was trying to make was directed not so much at the justices themselves. Whether or not this ruling counts as “judicial activism” as opposed to judicial over-reach or judicial revisionism or judicial wisdom or whatever one might choose to describe it, I was aiming my comments at the conservative opinion bloc which has the hypocrisy to label every decision they don’t like “judicial activism.” The most egregious example followed Judge John E. Jones’s stinging rebuke to intelligent design in the classroom. Jones referred to precedent that had been established in several prior cases, as well as the basic Constitutional separation of church and state. Despite upholding every precedent and Constitutional principle, and despite Jones pre-emptively denying any activist leanings, the conservative opinion bloc was quick to label him a judicial activist simply because he rejected the conservative case. That is, “judicial activism” has become a term of abuse, like “liberal”, which bears absolutely no relation to the actual meaning of the term and is used to dismiss opponents without grappling with their arguments.
I think it says something about the narrow-minded intolerance of the current conservatism that an old-fashioned, devout Lutheran, Bush-appointed judge can so easily become an opponent of conservatism for doing his job and upholding established law. In actual fact, what the conservatives wanted was for Jones to overturn precedent and ignore the Constitution — Phyllis Shlafly went so far as to say that Jones had “stuck the knife in the backs” of the “evangelical Christians” to whom “he owes his position entirely.” That is, according to Shlafly and many other conservative pundits, Jones’s duty was not to be a judge but to be an appointed agent for his political handlers. Which would of course be judicial activism of a particularly corrupt nature. To have Jones labelled an activist by swathes of conservative opinion-makers demonstrates the utter emptiness of the term “judicial activism” in conservative thinking.
That was the point I was trying to make. Whether or not the Gonzales v. Cathcart decision counts as judicial activism, the fact remains that the Supreme Court was far more revisionist than Jones was — and so I ask again, how come Jones is called an activist for upholding precedent while Supreme Court justices are not when they overturn it? And I suggest again, this appears to be because only “liberal” decisions can be “activist” — even when they are made by conservative judges using conservative legal principles.
Addendum: in a stunning example of synchronicity, an hour after I wrote this the New England Journal of Medicine mass-emailed to announce another article examining Gonzales v. Cathcart, this time from a legal perspective. It’s freetext, and again, although author George Annas never uses the term “judicial activism,” it makes clear how far the Supreme Court has gone towards rejecting precedent and creating an entirely new extension of legislative powers.
3 People have left comments on this post
Chris, the fact that some knucklehead like Phyllis Schlafly misuses a term does not render the term meaningless.
Judge Jones’s decision on intelligent design was not judicial activism, because it applied a constitutional provision that is actually in the Constitution. There is bubkes in the Constitution about a right to perform second- and third-term abortions by intact dilation and extraction. It would be judicial activism to invent such a right. The Supreme Court would be doing it not because it follows from the language of the Constitution, but simply because the justices believe that as a policy matter is a good idea.
It is very dangerous to encourage judges to rewrite the Constitution according to their own policy views. Even if you agree with the policy views of the current group of activist judges (and I often do — I think abortion should be legal, I think gay people should be able to marry, etc.), there is no reason to be confident that you will like the “good ideas” of future judges.
I fear that some day an activist conservative Supreme Court will cause liberals to regret ever having embraced the philosophy of judicial activism. I much prefer to take my chances with democracy.
I agree, Aaron. I understand full well that a judge’s job isn’t to make policy but to interpret the law, and there is a great danger in judges imposing their own views on the law because, unlike other arms of government, there are few limitations on their powers other than that they work within the Constitution and legislation.
And I agree that “judicial activism” is a meaningful term, but my point was that it had lost its meaning *in the conservative sphere*. That is, many conservative opinion-makers use the phrase as a tar-brush and apply it without reference to its actual meaning. The same goes for “liberal”, and with reverse connotations, “conservative” and “patriotic.” (It still amazes me that Oliver North can be widely held to be a patriot when any sensible analysis would place his actions in the Iran-Contra affair dangerously close to treason.)
I used Schlafly as a particularly nasty example of conservative punditry — as you so aptly put it, “some knucklehead.” But the opinion she spouted was reflected by a whole bunch of other knuckleheads like Bill O’Reilly, and of course the professional lies department of the Discovery Institute. Knuckleheads they may be, but at the moment the knuckleheads have the inside track on conservative opinion-making in the US — witness John McCain’s extraordinary contortions to appease the insane apocalyptic evangelical bloc. I say this, by the way, as someone with strong conservative leanings in the traditional sense of the word. And I bemoan the way crazy theocratic radicals — the very antithesis of conservatism — have co-opted the word “conservative” in such a way as to render it as meaningless as everything other word they choose to redefine for rhetorical purposes.
And I also agree with you that judicial activism is a double-edged sword. It may seem like a good idea when your political philosophy is not getting any traction in the legislative assemblies you live under. But, as you say, there is no reason to believe that a judge with views you despise won’t decide to become just as activist in response, and then you end up with a battle between political apparatchiks instead of constructive legal interpretation.
I’ve seen that in many instances, judges have upheld a law they disagreed with, and in those cases they may add to their summation a recommendation that the law in question be reviewed by legislators. And, of course, Gandhi famously advised the judge in his own trial that he had only two choices: to find him guilty as charged or to resign in protest at an unfair law. It was a novel defence, but then Gandhi’s main concern was not whether he went to jail.
Fair enough. There are too many people who use the term “judicial activism” to describe any decision they happen to disagree with. In the long run, this only bolsters the false notion that the term has no real meaning. But there are also plenty of conservatives (and others) who use the term more carefully.
I also agree that the same fuzzy thinking is affecting to the terms “conservative” and “liberal.” American politics is largely comprised of people who call themselves conservative but aren’t and people who refuse to call themselves liberal but are.
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