An activist?
Here come da' Judge!
To act or not to act?
September 24, 2005
Last week was extremely stressful for conservatives, especially the type that goes to bed worrying about how to take back the judicial branch. President Bush’s nominee for Chief Justice, John Roberts, was subjected to difficult questioning by Senate Democrats, who audaciously believe they have a right to know something about the nominee for the highest judicial position in the nation before they vote to confirm him. Underscoring the importance of the confirmation for conservatives was the recent San Francisco federal court decision, which ruled that the recitation of The Pledge of Allegiance in public schools is unconstitutional. As, we would expect, these events produced a miasma of anger and distortion in the wingnut press.
MYTH: Judge Roberts was no more evasive than Justice Ruth Bader Ginsburg
Schumer grumbled that Roberts was getting away with incorrectly claiming he was following precedent set by liberal Justice Ruth Bader Ginsburg in her confirmation hearing (though in private conversation last week, Ginsburg disagreed with Schumer).
-- Robert Novak, “Chuck Schumer’s Massive Defeat,” Human Events, 09/19/05
REALITY
Ginsburg disagreed with Schumer? Really? To whom? You Bob? What did she say? Bob Novak is a consummate Washington insider, but, unfortunately, he doesn’t take his job very seriously. If Ginsburg privately disclosed that Roberts was, in fact, following her example, then why is Novak writing about it publicly? If Novak was willing to out a CIA agent to aid his party's political thugs, would he lie about a private conversation he had with Ruth Bader Ginsburg?
We don’t need to rely on Novak or even Ginsburg to decide whether or not Roberts’ Senate testimony was exceptionally evasive. According to the National Women’s Law Center, Justice Ruth Bader Ginsburg was far more forthcoming in her confirmation hearing than Judge John Roberts. Unlike Roberts, Ginsburg did answer Senators’ questions about abortion and the right to privacy. With respect to abortion, Ginsburg had this to say: “This is something central to a woman’s life, to her dignity. It is a decision that she must make for herself. And when government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.” In contrast, when asked about Roe v. Wade, Roberts demurred, “Well again, I think I should stay away from discussions of particular issues that are likely to come before the court again and in the area of abortion there are cases on the court's docket, of course. It is an issue that does come before the court.” Roberts did allow that there is a right to privacy in the Constitution but would not give any indication as to how it should be applied. Ginsburg’s testimony, on the other hand, prompted the Judiciary Committee to declare: that “the committee knows far more about Judge Ginsburg’s views on reproductive rights than it has known about any previous nominee’s.”
MYTH: Liberals are misrepresenting the meaning of “judicial activism” to justify their judicial philosophy
If Americans loved judicial activism, liberals wouldn't be lying about what it is. Judicial activism means making up constitutional rights in order to strike down laws the justices don't like based on their personal preferences. It's not judicial activism to strike down laws because they violate the Constitution.
But liberals have recently taken to pretending judicial activism is — as The New York Times has said repeatedly — voting "to invalidate laws passed by Congress." Invalidating laws has absolutely nothing to do with "judicial activism." It depends on whether the law is unconstitutional or not. That's really the key point…
This is the Democrats' new approach to winning arguments: Change the definition of words in mid-argument without telling the guy you're arguing with. Chairman Mao would approve.
-- Ann Coulter, “Actually, ‘Judicial Activism’ Means ‘E=mc2,’” 09/14/05
REALITY
Ann Coulter makes precisely the same mistake she accuses liberals of making. According to Coulter, liberals have adjusted the definition of judicial activism to make it more palatable to the American public. As usual, crazy Ann is not burdened by the strict construction of truth in making her case. Coulter concocts this definition of judicial activism: “making up constitutional rights in order to strike down laws the justices don’t like based on their own personal preferences.” Gee, that definition of judicial activism sure sounds bad.
We have previously decoded the conservative movement's use of empty phrases and code words like "judicial activism" and "strict constructionist". In general they betray alarming wingnut objectives:
... as Jeffrey Rosen points out, these days there are many types of "conservative" judicial philosophies. Empty phrases like "judicial activism" and "strict constructionist" are certainly code words, but they may be received differently by Bush's two bases, social and economic conservatives.
In particular -- Bush has seemingly promised the religious right that he would nominate judges who would restrict individual rights and expand government power to control private, personal behavior. These Moralists' concerns are typified by outrage over the striking down of "sodomy" and porn laws and, of course, reproductive rights.
At the same time, many of Bush's controversial lower court nominees embodied a rarified "Libertarianism," or "Constitution-in-exile" philosophy. Judges like Janice Rogers Brown believe the federal government has little or no power to make environmental or business regulations, consumer protection, or even any large program like Social Security, which she called "the triumph of our socialist revolution." So these "Libertarians" would restrict the power of the legislature to enact popular laws, on the basis that such laws might interfere with an abstract, robber-baron notion of property rights.
Although liberals have not created a legal movement around sound bites and sham "philosophies," it's probably safe to say that most of us see a democratic will defining the scope of government through the legislature, but with a definite, unimpeachable role for the judiciary: protecting individual rights. Since minority rights are almost by definition opposed to majority rule, our form of government keeps them safe from all-too-frequent legislative overreach.
There really must be something wrong with her. This current wingnut judicial bogey man is much more complicated than she suggests. In fact, the term is quite elusive. Justice Scalia dismisses the term as “totally imprecise” and “nothing but fluff.” According to Nixon’s former counsel, John Dean, law professors attempt to define “judicial activism” roughly 500 times a year. With that in mind, let’s consider the broadest definition possible. According to Joseph William Singer, Professor of Law at Harvard University, “I would define judicial activism as the willingness to change legal rules in a way that alters the existing distribution of social, economic, or political power” (35 Rutgers L. Rev. 275, 275-280, 1983). More specifically, judicial activism should be understood as a willingness to contravene precedent or another branch of government to get a desired result. It is what many people would call results-oriented adjudication, or legislating from the bench. The crucial point, however, is that, as Singer further notes, “Activism has no inherent political direction to the right or to the left.” When the precedent or legislature is conservative, judicial activism will be seen as liberal, but when the precedent or legislature is liberal, judicial activism is conservative.
To understand this point, let’s assess the case many legal scholars call the most important example of judicial activism in this century—Brown v. The Board of Education. In defiance of established precedent in the form of Plessy v. Ferguson, the Warren court found that the doctrine of “separate but equal” has no place in the public education system. According to the majority opinion, “Separate educational facilities are inherently unequal.” This subjective assertion was based on decades of observable history of the vast disparities between white and black schools. With the U.S. Senate dominated by racist southern democrats allied with northern and western republicans, the Warren Court understood that it represented the only avenue for progress. In this circumstance, liberal judicial activists advanced the cause of civil rights, ushering in the movement’s first important victory.
"Judicial activism" is an empty pejorative now, but if you had to choose whom to apply it to, who would it be: the court's majority, as it mainly upholds precedent and keeps things the way they are, or these Moralists and "Libertarians," who demand a break from the past and a new, dubious interpretation of the Constitution?
