Enough with the [Phrase] Activist Judges!
John McCain promises in an article at law.com today that if elected, he would avoid "activist judges" like the social plague everyone agrees they are.
But do we agree? What the hell is an "activist judge," anyway? The phrase is like "alibi," "Sunni Islam," or "fiscal conservative" -- everybody uses it, but who can say what it means?
The distinction between "activist judges" and the three phrases just listed, however, is that "activist judges" probably never had a precise meaning. If you are conservative, the phrase means the likes of Justice William O. Douglas, and perhaps Chief Justices Earl Warren and John Marshall. If you are liberal, you feel sort of uncertain and defensive because you don't pay attention to Bill O'Riley anyway. And if you are intellectually honest, the list of names above leaves you feeling confused.
As far as I can tell judges and Justices transmogrify into activists when:
But can this really be the kind of analysis upon which lamenters like McCain of activist judges base their conclusions? Is that what Mark Levin means? Rush Limbaugh? Would they agree that all of above-listed Justices have been working together in scurrilous concert to dismantle our system of government? Scalia and Douglas??
No. The truth is that the only common ground those Justices share is an address. The truth is that "activist judges" is nothing more than a pejorative, politically poisoned rephrasing of "broad judicial review." It's what Chief Justice Marshall created in Marbury. It is what the New Deal Court did after the Depression. And it is nothing short of ironic that broad (or at least sweeping) judicial review would also be the effect of Scalia's construction of the Constitution, were it actually applied across the board.
That's why I think distinctions like activism versus restraint are suspect in concept, and worthless in practice. To use the phrase "activist judges" is to convey a category without content; it means nothing, yet always produces a response. People put it in sentences and nod their head gravely, as though they were talking about Darfur, mortgage backed securities, or some other political event they feel guilty for knowing nothing about, except that it "seems like a serious problem," and that "something should be done." That is why John McCain's promise draws not from any worthwhile taxonomy of judicial philosophies, but from ignorance and guilt.
The bottom line is that "activism," which conjures up Berkeley-eqsue images of protest and unrest, means nothing more than "politically undesirable." Because it is a loaded term, those who use it are the incestuous comminglers of the branches of government -- not the judges at whom the phrase is directed. It is people like McCain who inject politics into the judiciary. It's people like McCain who would legislate from the bench, by way of appointee. It is people like McCain who should anger Limbaugh and Levin.
But do we agree? What the hell is an "activist judge," anyway? The phrase is like "alibi," "Sunni Islam," or "fiscal conservative" -- everybody uses it, but who can say what it means?
The distinction between "activist judges" and the three phrases just listed, however, is that "activist judges" probably never had a precise meaning. If you are conservative, the phrase means the likes of Justice William O. Douglas, and perhaps Chief Justices Earl Warren and John Marshall. If you are liberal, you feel sort of uncertain and defensive because you don't pay attention to Bill O'Riley anyway. And if you are intellectually honest, the list of names above leaves you feeling confused.
As far as I can tell judges and Justices transmogrify into activists when:
- They strike down socially popular legislation on constitutional grounds (e.g., eliminating the death penalty for child rape in Kennedy v. Louisiana, or affirming citizen enemy combatants' habeas rights),
- They ignore or overturn precedent (e.g., reversing without distinguishing Betts v. Brady, in Gideon, or striking down Plessy v. Ferguson's separate but equal theory in Brown), or
- They depart from common and accepted constitutional constructions (e.g., the recent gay marriage decisions in California and Connecticut, the New Deal Court's treatment of the Commerce Clause, Griswold's sudden discovery of privacy in the Bill of Rights, which had somehow been overlooked for more than 150 years, or many Scalia and Thomas dissents).
But can this really be the kind of analysis upon which lamenters like McCain of activist judges base their conclusions? Is that what Mark Levin means? Rush Limbaugh? Would they agree that all of above-listed Justices have been working together in scurrilous concert to dismantle our system of government? Scalia and Douglas??
No. The truth is that the only common ground those Justices share is an address. The truth is that "activist judges" is nothing more than a pejorative, politically poisoned rephrasing of "broad judicial review." It's what Chief Justice Marshall created in Marbury. It is what the New Deal Court did after the Depression. And it is nothing short of ironic that broad (or at least sweeping) judicial review would also be the effect of Scalia's construction of the Constitution, were it actually applied across the board.
That's why I think distinctions like activism versus restraint are suspect in concept, and worthless in practice. To use the phrase "activist judges" is to convey a category without content; it means nothing, yet always produces a response. People put it in sentences and nod their head gravely, as though they were talking about Darfur, mortgage backed securities, or some other political event they feel guilty for knowing nothing about, except that it "seems like a serious problem," and that "something should be done." That is why John McCain's promise draws not from any worthwhile taxonomy of judicial philosophies, but from ignorance and guilt.
The bottom line is that "activism," which conjures up Berkeley-eqsue images of protest and unrest, means nothing more than "politically undesirable." Because it is a loaded term, those who use it are the incestuous comminglers of the branches of government -- not the judges at whom the phrase is directed. It is people like McCain who inject politics into the judiciary. It's people like McCain who would legislate from the bench, by way of appointee. It is people like McCain who should anger Limbaugh and Levin.
Labels: Rabid Conservatives
posted by Patrick Bageant at 11:33 AM
11 Comments:
I thought the term "activist judge" came about in the aftermath of Roe v. Wade, not just for "a politically unpopular decision", but rather a politically unpopular decision for a minority of Americans.
In any event, it took me several years to convince my mom that it's ok for judges to interpret the law in a way other than the way she thinks for several reasons (Congress isn't always clear in their bill langauge, checks and balances, etc).
I think it's safe to say that the term "activist judge", given who says it, is a term for "judge that interprets the law in a 'damned-liberal-agitator'" type way. The term itself is one of several that are sexy (from a marketing perspective) to their target audience, and also includes "terrorism", "socialist", and "American values". It's frustrating that the other side doesn't have equally sexy terms. I propose: "the Constitution", "privacy", and "free donuts".
Actually, the phrase is older than thatt. According to our esteemed Law Review, the phrase came from a Fortune magazine article in January 1947. Rock on down to fn. 22 for a brief description.
To salvage some meaning for the phrase, consider the following scenarios:
- Implying a private right of action in a statute that lacks explicit enforcement provisions.
- Broadly construing federal question jurisdiction.
- Issuing positive injunctions, like the injunction requiring the Cailfornia legislature to spend billions of dollars on medical care in prisons or imposing busing to remedy past discrimination.
- Setting aside a jury verdict for lack of due process because the judge failed to inform the jury of the sentencing regime (this example, of recent vintage by Judge Weinstein, leads to the next: anythign involving procedure done by Judge Weinstein).
- Certifying a nationwide class on claims like sex discrimination (the Walmart case in the Ninth Circuit).
Granted, none of these are the example McCain recites. He is using the term in a meaningless, red-meat sense.
But that does not mean the label has no virtue. The Federal Courts syllabus is replete with cases raising the question of whether the court should defer to other branches, hold broadly or narrowly, abstain from an issue to permit another court to resolve it, etc. Judges who consistently aggrandize the power of the federal court rightly earn the label "activist."
So, that can provide some context for the phrase. Now, whether activism is good or bad is another issue. I'm not a big fan. Judging requires humility, familiarity with what the court knows and does not know, and recognition that the court has "neither sword nor purse" and relies on its legitimacy for its power. Judicial "activism" is consistent with none of these.
- Anon.
this is a good post
Anon. cont.:
E.g., "State ready to defy judge on prison hospitals".
As explaiend, "Henderson took control of the prison health system in 2006, saying evidence in an inmate lawsuit showed that inadequate medical care was killing at least one prisoner a week and that state officials had shown themselves incapable of complying with the constitutional ban on cruel and unusual punishment."
California's deputy attorney general responded: "This court has no authority to order construction of prisons," Powell told Henderson. California's position is that state officials must review the construction plans, decide whether they comply with legal restrictions and seek specific approval from the Legislature.
I find Boalt's lionization of this judge interesting. Not good or bad, but interesting. But I believe that this is a context where the "activist" label applies.
@ anon.
Many of the examples seem vulnerable to media characterization as "activist," but at least two of them also pretty defensible on doctrinal grounds. For example, almost any attempt to describe the scope of federal question jurisdiction (be it narrow or broad) is open to charges of "legislation from the bench." Personally, I think federal question jurisdiction should be construed quite narrowly (it's something in the water where I grew up, maybe?) but I also recognize that a judge who construes it more broadly than I would hope hasn't necessarily stepped beyond the pale.
Ditto the 9th Circuit class certification. I'm not sure I approve, but I don't think it is fair to paint that decision as "activist."
I don't know much about Judge Weinstein's crim pro, so I can't go there, but I freely admit that the Henderson example leaves me perplexed. It's hard to see how issuing that order to the Governor's office is any more justifiable than a court order commanding the legislature to pass a piece of legislation. But if that's what happened, maybe it qualifies as activist. It certainly qualifies as irrational. Maybe that's what "activist" means.
. . . and while we are speaking of petty politicization of complex legal doctrine, comes this.
I think anon helped us to reach some insight: the term is loaded, potentially inflammatory, and often amorphous, but not devoid of meaning. McCain may be using it without defining it, so he is not contributing to a meaningful discussion, but that's not to say he must be full of hot air.
Contrast his statement to Obama's statement along the lines of 'judges should have empathy for the little guy when making decisions, and I want to appoint those kinds of jurists.' That seems to me to be a step towards activism: away from impartiality (ruling on the merits) and towards a results-oriented jurisprudence.
As someone who usually favors the policies conservatives rail against when they criticize "activist" judges, I am pretty fed up. Not because "judicial activism" doesn't have meaning, but because it does. In most cases I have an opposite policy preference, but I share the conservative suspicion of social change through judicial action. I don't trust politics particularly, but I trust the political process to produce positive political change more than I trust the courts (if you are a lefty and trust the courts, stop by the criminal court and see what has become of the Constitution).
I have my beliefs because I think they are true, and I think that with enough time and education the rest of society might come around. I'm not convinced that judicial action speeds this up. More importantly, for the courts to serve their primary role they need to be respected as fair and neutral arbiters, and they simply can't do this and also be activist.
The point is about the role of the different branches of government. I even wonder if we would have stronger abortion rights and more progress toward racial equality if change had come through political action without the "help" of Roe v. Wade or Brown v. Board, the most obvious success stories of lefty judicial activism. Sure, people were ignorant and would have fought progress, but that happened anyway. We have been steadily weakening abortion rights since Roe, and there are still a huge number of mostly segregated schools (now "voluntarily"). The black schools tend to have no resources and the white schools tend to have all they could want.
So before you jump too fast to praise Roe or Brown, or other examples of judicial activism, think for a minute about what they failed to accomplish, and the wide range of ways social progress can happen. And think about what happens to the judicial system when we approve of that. And remember that the judges aren't always going to be on our side. And vote for Obama. And for prop 5. And against 4, 6, 8, and 9.
Those are good points, and well taken.
Where does the Cal gay marriage decision fall? Would this country be moving in a progressive direction on that issue if Courts hadn't stepped in? Or was the California decision a restrained reading of the state constitution?
I think the gay marriage decision was activist, but closer to the line than some. I would have preferred that we protected gay marriage without the aid of the courts, and if there was going to be a proposition giving the public the chance to affirm the right to gay marriage I would have liked it to be a yes vote rather than a vote against a ban. But now that it's in the political domain, vote no on 8.
Post a Comment
<< Home