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View Diary: The Nuclear Option is Coming. Are you ready? (140 comments)

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  •  'Right thing to do' (4.00)
    The proponents of gradual social change rather than judicial activism are not disputing what is 'right.' They are asking, What is the most effective means of achieving that goal? The proponents would cite Brown as a good example of the failure of judicial activism. It resulted in private academies and cutbacks in public school funding.

    The legislative and judicial branches were not ignoring all these issues. Truman had desegregated the military, for example, and New York State had legalized abortion before Row v. Wade. Different states were wrestling with incremental changes to the rights of gay partners before the courts stepped in.

    Proponents would also point out that judicial activism lets politician off the hook. If legislators knew that the courts would never fix (for example) school funding, they might be more inclined to act on their own.

    That's about as far as I can go defending this view, because I tend to agree with you. The Vermont civil union ruling quickly transformed public opinion, despite an initial firestorm. Minority rights should not depend on people who face reelection every couple of years -- judges with lifetime appointments can be more principled.

    I've got blisters on my fingers!

    by Elwood Dowd on Sat Apr 02, 2005 at 10:40:39 AM PST

    [ Parent ]

    •  judicial activism (4.00)
      I would take issue with anyone that uses the term "judicial activism" without defining that term.  It is the judicial role to articulate what the law is, with constitutional law trumping all other law.  Therefore, to be an "activist," I would imagine that a judge either must be result-oriented and purposely mis-apply the law or use a method of legal interpretation (be it originalism, reasoned elaboration, purposivism, textualism, etc.) that one disagrees with.  If we are going to point to a decision and say: LOOK! That damned activist judge is at it again! - I'd really like to know why we are defining a particular case as an example of such activism.  In Brown I, the Supreme Court examined school segregation laws and felt that they violated the Equal Protection Clause of the Constitution, on the ground that the state had an obligation to provide equal facilities for all children that wasn't being met because of segregation.  The opinion is vulnerable to criticism because it relied in part on behavioral studies for the proposition that black students performed worse in a segregated environment than they would in an integrated one, and these studies have not stood up well over time.  Even if its reasoning is flawed, many distinguished legal authorities agree that the Court got the law right.  How then is the opinion activist?  I don't see how an opinion can be labeled activist if the judge correctly applies the law to a specific case, no matter how much controversy it creates.

      I would also take strong issue with anyone that pointed to Brown as a judicial failure.  Serious efforts to desegregate Southern schools did not take place for a decade following the Brown I decision, during which time I would press those who support this "incremental change" theory to show what incremental changes were, in fact, taking place (and I mean in the South, not in a state like New York).  That desegregation occurred in a few piecemeal areas of society does nothing to prove that desegregation of schools was imminent or even likely, particularly since such schools are controlled almost exclusively by state and local governments that had discriminated against blacks throughout their entire history. That these changes may have resulted in the founding of some private schools and resulted in some decreased school funding (for desegregated schools, I would point out - predominantly black schools were already severely underfunded) does nothing to show that the Brown decisions had a net negative effect on society.  Before I'm willing to swallow that whopper, I want to see some really compelling evidence.  

      One of the most important roles of the courts is to articulate the rights of American citizens.  They are a defense of minorities against the tyranny of the majority.  That is why federal judges are given lifelong tenure and pay security - to insulate them from political pressure.  The smaller a minority within society, the less incentive any popularly-elected politician has to take its rights seriously, and the more important the judiciary's role becomes.  The end result of this "gradual change" theory would be for courts to abandon this role and have the majority of the moment dictate the rights of all.  I for one am not prepared to live in such a society.

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