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With Chief Justice Rehnquist on the fast track to private citizenship, the Senate floor is due a visit by the Ghost of Robert Bork's Confirmation Hearing Past, along with vituperative colloquy of activist judges and the liberal heretics whom they serve.  So we do not just beat on, boats against the current, we need to take aim at the silly notion that this phenomenon is a bad thing and exists only as grist for left-leaning mills.  

Full disclosure: I am a liberal lawyer offering my version of the Cliff's Notes to the convention in Philadelphia and to the goings-on of the various chambers in which over 200 years of Supreme Court discourse have brewed.  So I guess that makes this piece more like Judicial Activism 99 or 100.  I don't presume to have it all down, and I would be honored if Kossacks more learned than I would oblige me with updates and corrections as they see fit.  I also am not offering neatly packaged reframing; I am just trying to lay a foundation on which, I hope, others will craft some new ideas.

That said, there is context to this hoopla that I think is worth understanding so that we can intelligently wash out the ugly hue of "liberalism-as-usual" with which the Right has painted this inherently neutral canvass.  

1. "Judicial activism" is the legacy of the Framers

Another way of regarding this proposition is to ask a question: If the Court should not be "active," what should it be?  Passive?  This is certainly possible, and it would logically follow that critics of activism crave passiveness.  But do-nothing Supremes would hardly uphold the Framers' vision of a leviathan Court perched high above the federal government (and according to Marshall, high above the states as well); it was not by accident that amendments giving Congress veto power over the Court never made it out of Philly.  For all of the debate over the distribution of power between the states and the unborn federal government, very little was said of the creation of a judiciary vested with the awesome power of review over the legislature and executive.  It was on this vision that John Marshall, the Court's greatest Chief, acted to transform the Court from shield to sword, and from this vision that judicial activism derives its authority.

So if an active Court is what the Framers wanted, then there must be some other quality of "activism" with which the original-intent-loving conservatives take such umbrage.  By most accounts, it seems that this ethereal characteristic is deference, or rather, a lack thereof on liberal benches.  But deference to what is unclear.  In 1792, for example, the first Justices decided Hayburn's Case, seizing their first opportunity to strike down a Congressional law.  Naturally, their audacity miffed the president who nominated them and the Congress that approved them, and the ensuing calls for impeachment augured the perils of judicial boat rocking that would await Earl Warren nearly two centuries later.  In another case decided shortly thereafter--Chisholm v. Georgia--the Court again embraced unpopularity by declaring that under the Constitution the states were not sovereign, and were therefore exposed to civil actions brought by private citizens.  The aftermath of this decision was so riotous that Congress proposed and the states ratified the 11th Amendment just a few years later.  

The cacophony of "activist!" catcalls echoing in the press in the wake of both cases is almost audible today.  But ironically, each of these justices was an avowed member of the ruling Federalist party and most had been, in one form or another, a Framer of the Constitution.  So were these Framers guilty of flouting the original intent of the Constitution as contemplated by, er, themselves?  No.  They were just guilty of pissing off the ruling party and the states (an impressive list of enemies, for sure), irrespective of how accurately they performed their jobs.  

And therein lies the true bane of judicial activism: people don't like to be told they're wrong, even when they are.  Neither a state, nor Congress, nor even the executive has any reason to believe that it can navigate the application of the Constitution to society; the one-two punch of Articles III and VI gives the Supreme Court that honor.  It's just that subordination is a tough row to hoe, and resistance isn't always futile.

2.  Judicial activism can be state-centered (Right) or people-centered (Left)

The dirty secret of this wedge issue is that when Bush decries "activist judges," he really means "judges who think that Warren correctly decided Brown v. Board of Education."  He does not mean "judges who think that Rehnquist, Thomas, O'Connor, Kennedy, and Scalia correctly decided Kimel v. Florida Board of Regents and Printz v. United States" (two cases widely cited as the most flagrant pro-state disregard for 10th and 11th Amendment precedent in recent memory).  Because in his mind, activism that promotes state sovereignty is permissible; activism that promotes individual rights is not.

The Call of Brown

The downshot is that the public hasn't a clue about this difference, and because of that has been made to believe that activist judges let gay people marry in their town and move in next door, and constructionist judges do not.  But the upshot is that if properly dissected and exposed, Bush's hypocrisy forces him to make one hell of a Hobson's choice: embrace judicial activism or say that Brown should never have happened.

Brown is the paragon of modern people-centered judicial activism.  Without Brown, we don't get Roe v. Wade or Lawrence v. Texas, to name just two of many important decisions.  And since  Brown marked the end of segregation, it's kind of a good flagship because who's going to be the asshole to talk shit about its outcome.  But for the Brown Court to have found that the 14th Amendment's Equal Protection Clause prohibited the "separate but equal" doctrine established almost sixty years earlier, it had to be decidedly "activist."  In fact, the decision depended on the following conclusions that had no textual support in the Constitution or in precedential case law: (1) That material equality in black and white schools (i.e. the same books, the same buildings, the same pencils, etc.) was irrelevant to an Equal Protection analysis; (2) That the states did not have absolute authority over an inherently "state" issue such as education; and (3) That some "discrete, insular minority" groups are likely entitled to "more searching judicial inquiry"--to borrow a famous footnote from a 1938 case that is widely viewed as a main source (albeit controversial) of support for the Court's authority to give special consideration to certain out-groups. Had the Court adopted a passive role, it would have decided only the case before it, leaving remedial treatment of the evils of segregation on a national scale to future decisions on a case-by-case basis. (Not so ironically, this latter approach has been a personal favorite of Rehnquist during his time on the bench.)

The Conservative Volley

My point so far has been that judicial activism--however it presents--is an inevitable characteristic of the high court if it truly heeds the Framers' call.  So I'm not incensed that the Right pedals it too; in fact, I wish we could all celebrate it (maybe this is the beginning of a reframe...).    

Right-wing activism in the courts is subtler, and thus harder to discern.  But it's there.  And since I don't want this already lengthy diary to become an unintelligible legalistic behemoth, I will be terse.  If the legacy of the Warren Court is sweeping social reform under the 4th, 5th, 6th, and 14th Amendments, then the legacy of Rehnquist's bench will surely be the revival of the State through the 10th and 11th Amendments, and through the drastic limitations placed on Congress's power to regulate commerce (a catch-all avenue through which nationalism exploded during the New Deal era).  And to a lesser but equally important extent, it will also be the rolling-back of the Warren Court's gains through purely procedural mechanisms, which ironically have absolutely no constitutional foundation.  In short, Rehnquist is the Right's Earl Warren.

Here's some evidence: In the 1996 case Printz v. United States, Justice Thomas wrote a separate opinion (gasp!) in order to posit unequivocally that the 10th Amendment stood for the "undeniable notion that the federal government is one of enumerated, hence limited, powers."  In doing so, he blatantly ignored clear precedent that the 10th Amendment was merely a truism and not an independent source of power (the prevailing view for the sixty-odd years in between the decisions).  The Printz decision did nothing to overrule this precedent; it was just an ad hoc bestowal of previously nonexistent rights to the states.  The same can be said of the Kimel v. Florida Board of Regents decision, in which the 5-4 majority, led by Rehnquist, held that the 11th Amendment prohibits nonconsensual suits by citizens of a state against that state.  Again, this edict flew in the face of clear precedent, and in this case, the conspicuous absence of any such language in the text of 11th Amendment itself.  Finally, to beat a dead horse, Bush v. Gore showed that Rehnquist, fittingly like his distant predecessor Marshall, found the Court a capable vehicle for the promotion of personal agenda.  This case is perhaps the one instance where Rehnquist allowed an uninjured plaintiff to bring forward a claim under the 14th Amendment's Equal Protection Clause.  (As Scalia stated, the media had bestowed on Bush a presumption of legitimacy by calling him the winner, and it was this presumption that the Court sought to protect; in fact, Al Gore was the real injured party in that his votes were the ones that were not being counted). Basically, Rehnquist has done everything the Framers didn't intend.      

What's this all mean?

If you decided not to read all of my blather and skip to the chase, then here it is.  Judicial activism is the practical manifestation of the vision of the Framers: that the Supreme Court was, and is, the most powerful entity in this country.  It expresses itself as both progressive reform and status quo protectionism.  But no matter what shape it takes, it's a practice cherished by every Justice to have assumed the bench. John Marshall first embraced it over 200 years ago, and all nine members of the current Court echoed the sentiment in the 90s when they agreed in the Kimel case--a bitter 5-4 split--that they, not Congress, have the final say on interpreting the Constitution, even if they were divided as to the particulars of this task.

It was the will of the Framers to have a Supreme Court that expounded the Constitution--the Supreme law of the land.  In this light, judicial activism isn't a mystery or a disfavored practice.  But Bush's refusal to admit that he secretly supports one version of it is.  Spread the word.

Originally posted to PADC on Tue Dec 14, 2004 at 03:56 PM PST.

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Comment Preferences

  •  Thank you! (none)

    I crave diaries where I learn something new and, moreso, learn how to think better and/or differently.

    (Oh, I think you're supposed to give yourself a tip jar -- that's what they tell me.  Anyway, I'll give you a big tip.)

    P.S.  I would not want to bring it up now, but I'd be most interested in your opinion -- sometime -- of the Democrats' suit and the WA Supreme Court hearing yesterday and its ruling today.

    Susan in Port Angeles (my cat)

    by SusanHu on Tue Dec 14, 2004 at 03:56:16 PM PST

    •  Now ... (none)
      I'm going to print this out, and study it.

      Susan in Port Angeles (my cat)

      by SusanHu on Tue Dec 14, 2004 at 03:58:14 PM PST

      [ Parent ]

    •  To be perfectly honest (none)
      I am not completely sure what judicial subtext might exist in the WA decision yesterday.  It seems, on its face, to be a decision based on statutory construction: the WA statute provides for reconsideration of "tabulated" votes, which would exclude votes that were originally thrown out. Bush v. Gore made a mess of election-related Equal Protection claims, so without reading more about the decision and the legal support for it, it's hard to tell what could/should have happened had the WA Supremes wanted to tackle the issue of reconsidering initially uncounted votes.  But maybe others have more insight?

      "The Red Sox have won baseball's world championship. Can you believe it?!" -- Joe Castiglione

      by PADC on Wed Dec 15, 2004 at 07:56:32 AM PST

      [ Parent ]

  •  Where is it? (none)
    I can't find your tip jar.

    This is great stuff.  A real education for me.  Now, could you explain about "constructionist" judges?


    It is no accident that Liberty and Liberal are the same word.

    by Sorceress Sarah on Tue Dec 14, 2004 at 04:00:25 PM PST

    •  Constructionists (none)
      strive to devine the original intent of the Framers when reading the Constitution.  Their mantra is "if it's not expressly in the Constitution, it doesn't exist."  They would disagree with Roe v. Wade, for example, because the 14th Amendment's substantive Due Process Clause makes no explicit mention of "abortion" or "privacy."  They would similarly object to recognizing any special protected status for the gay community, the elderly, or the mentally disabled (to name a few "out-groups") because in literal terms, the Constitution only proscribes discrimination based on race or national origin (and to a slightly lesser extent, gender).  

      Basically, they presume to be able to read the minds of men who lived over 200 years ago, and do not believe that relativism has any place in the judiciary.

      "The Red Sox have won baseball's world championship. Can you believe it?!" -- Joe Castiglione

      by PADC on Tue Dec 14, 2004 at 05:17:08 PM PST

      [ Parent ]

  •  Tip Jar (none)
    Thanks for the nice words.  I'm new to this, so is this how a tip jar works?

    "The Red Sox have won baseball's world championship. Can you believe it?!" -- Joe Castiglione

    by PADC on Tue Dec 14, 2004 at 05:03:19 PM PST

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