Judicial Activism: Nothing but Political Theatrics


On Monday, as we know by now, President Obama nominated Solicitor General Elena Kagan to the Supreme Court to replace retiring Justice John Paul Stevens. The selection of Ms. Kagan was predictable and her confirmation is all but inevitable. Also predictable is the long line of theatrics that will surely accompany the conformation process. Everyone can be assured that any mainstream coverage of Kagan’s appearance before the Senate will be completely devoid of any actual analysis of her scholarly or legal record or of her actual judicial philosophy.

The Senate itself will likely use the occasion as an opportunity for grandstanding and pandering to their constituents. Some will press Kagan on detainee issues to show that they themselves are “tough on terror” and others will push her to declare “objectivity” or “fidelity to the law” without examining what any of this actually means in light of the constitution or how Kagan herself ought to act as a Justice. Yet another piece of theatrics we can count on is the term “judicial activism” being thrown around continuously along with the assertion that judges should not subvert the supremacy of lawmakers or make the law themselves.

Naturally, those leveling the accusation will not clearly state what the Constitution demands where certain issues are concerned and precisely why, preferring instead to only say what is not constitutional, again not clearly stating why. Not surprisingly, whatever a particular politician or talking head finds unbecoming of a Supreme Court judge will happily coincide with their already established political beliefs.

The term has already started cropping up since Kagan’s nomination. The Daily Beast, in a list of reactions to the nomination, quotes Tom Minnery, Vice President of Public Policy at Focus on the Family, as stating

We are extremely disappointed by the President’s nomination of Elena Kagan to the Supreme Court. Kagan’s nomination is a triumph for liberal ideology and judicial activism. She has never been a judge, nor written a judicial opinion. In fact, she has very limited experience in the actual practice of law. Her resume reveals her to be an academic who has served liberal judges, liberal presidents, and liberal universities. Her entire career has been lived in a narrow slice of the judicial spectrum .Even with her sparse legal record, one thing stands out—her emotional and legal commitment to the LGBT agenda.

How convenient indeed that Kagan’s potentially lethal judicial activism happens to entail a commitment to the “LGBT agenda.” Minnery does not elucidate any constitutional support or argument against LGBT rights, instead stopping short of associating it with a judicial usurpation of democracy. Once again, any actual legal analysis is totally absent from such assertions.

This type of criticism is expected from the right, who have successfully co-opted the term judicial activism to associate it with pushing some sort of liberal agenda and perverting the Constitution. This is despite the fact that “conservative” rulings have had just as profound an impact on policy and precedent as any “liberal” leaning ruling. For example, Geoffrey Stone previously wrote in the Huffington Post of the policy and precedent overturned by the recent Citizens United decision, which removed limits from corporate donors to campaigns. Examining the aggressive First Amendment interpretation of the Supreme Court, Stone concludes,

One of the interesting things about Citizens United is that the “conservative” justices, who claim to exercise judicial restraint, are reaching out in this case to assert a very aggressive interpretation of the First Amendment. In this sense, and in the context of many other highly controversial areas of constitutional law — such as affirmative action and gun rights — these justices do not live up to their billing that they merely call “balls and strikes.” This is a very activist decision that will fundamentally transform American politics in the years to come.

Shockingly, however, even President Obama has gotten in on the act with his criticisms of the Warren and Burger courts, both of which were notably progressive in their decisions. Obama was cited in a New York Times article as having stated that these courts may have “overreached.” The article reads

In a seeming rejection of liberal orthodoxy, President Obama has spoken disparagingly about liberal victories before the Supreme Court in the 1960s and 1970s — suggesting that justices made the “error” of overstepping their bounds and trampling on the role of elected officials. . . .

Mr. Obama’s comments, which came as he prepares to make a Supreme Court nomination, amounted to the most sympathetic statement by a sitting Democratic president about the conservative view that the Warren and Burger courts — which expanded criminal defendant rights, required busing to desegregate schools and declared a right to abortion — were dominated by “liberal judicial activists” whose rulings were dubious. . . .

Several conservatives said they welcomed an acknowledgment by a Democratic president that the courts led by Chief Justices Earl Warren and Warren Burger had sometimes overstepped their role.

Much like some of his fellow critics of “judicial activism,” the President did not precisely state what rulings overreached and why those rulings were not constitutional. I’m certainly not going to make the outrageous claim that President Obama opposes decisions like Roe or Loving v Virginia, but the fact that such rulings are perfectly consistent with his own beliefs further underscores the fact that the term judicial activism is utterly meaningless and has been and will continue to be used to score political points, in this case in the name of “bipartisanship.”

In their constant crowing of “judicial activism” it is therefore entirely unclear precisely what it is politicians and professional windbags political commentators are opposed to and what judicial philosophy informs their opposition. Surely, this does not make for an informative and educational experience for the poor sap trying to make sense of the confirmation process. Neverending talk of essentially made up concepts like judicial activism and “calling balls and strikes” leaves the entire discussion around such an important and vital process in fantasy land and only serves those trying to score political points.

As I’ve mentioned, it remains unclear what exactly politicians are voicing opposition to other than any decisions which do not accord with their own views. Furthermore, if they are opposed to a judiciary taking away the policy-making powers of the legislative branch then they are simply out of touch because this has never been the case. Certainly, court decisions influence policy and set the framework within which policy is to be implemented, but this has always been the purpose of judicial review and constitutional supremacy – to check the actions of the executive and legislative branches and ensure that their actions are in accordance with the Constitution, or at least the judiciary’s best understanding of that document. If this is what critics are irked about, then they ought to at least deign to provide an alternative jurisprudence rather than simply wining at the current understanding of the Constitution.

However, if politicians and commentators are aggravated only at the fact that court decisions have ramifications for other branches of government, then they apparently oppose one of the most profound pillars of American government and democracy, namely that the Constitution, not the legislature or the executive, is the supreme law of the land and that the Supreme Court is the final interpreter of its tenets. This is elementary knowledge. Here is what Article VI states lest anyone have doubts of this:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The courts do not and never have made policy but have evaluated and remedied policy in accordance with their understanding of the Constitution, leaving the relevant government and bureaucratic bodies to implement policy in accordance with their decisions. This is the collaborative process that lies at the heart of any state premised upon constitutional supremacy. It is also the means by which America has achieved its greatest progress in cementing individual liberty and limiting executive power. Those who are so worried about limited government might want to consider that fact. Marjorie Cohn at Truthout, in an actual nuanced criticism of Kagan’s nomination, eloquently reaffirms this, stating,

The Warren Court issued several landmark decisions. It sought to remedy the inequality between the races and between rich and poor, and to curb unchecked executive power. Chief Justice Earl Warren wrote these words, which would later become his epitaph: “Where there is injustice, we should correct it. Where there is poverty, we should eliminate it. Where there is corruption, we should stamp it out. Where there is violence, we should punish it. Where there is neglect, we should provide care. Where there is war, we should restore peace. And wherever corrections are achieved, we should add them permanently to our storehouse of treasures.”

Conservatives decry activist judges – primarily those who act contrary to conservative politics. But the Constitution is a short document and it is up to judges to interpret it. Obama has defensively bought into the right-wing rhetoric, saying recently that during the 1960s and 1970s, “liberals were guilty” of the “error” of being activist judges. Rather than celebrating the historic achievements of the Warren Court – and of Justice Stevens – Obama is once again cowering in the face of conservative opposition.

Different interpretations of the Constituion are certainly valid, but to claim that the judiciary has been usurping democracy is simply absurd and foolish. Making this claim likely reflects either a lack of proper understanding of the way the American government works or a willful insult of people’s intelligence for the sake of political expediency. Both prospects are equally disturbing. This applies to both conservative wingnuts and President Obama. Jurisprudence is constantly in flux and ought to be examined critically in order to arrive at the best interpretation of the constitution, rather than imposing politics onto the judicial process. Given the current political climate, however, there is little hope that this will happen.

“Judicial Activism” as it seems to be defined by its critics is built in to the system and will continue to be present in various forms. If politicians are truly sincere, they will elucidate a clear judicial philosophy and interpretation of the Constitution and its relation to policy and how this informs their beliefs on the vital issues currently before the courts. Once again, however, I have no hope that this will ever happen.

Anyway, that’s just my opinion, what the hell do I really know?

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