Thursday, September 08, 2005

What is Judicial Activism, Really?

Charging RINO cites George Will's WaPo piece suggesting good questions to ask the prospective Chief Justice when he comes before the committee. Many strike at the basis of how one reasons about the law, and it's important that we constantly consider these questions as a nation, not only at the time of SCOTUS nominations.

The idea of judicial activism is a pervasive item of contention. Today, liberals tend to believe the constitution is a 'living document' with which each new generation must have a dialogue of sorts if it is to remain relevant and useful. Conservatives are more likely to hold the originalist view that the intent of the Founders must be preserved by considering it a static document.

But that's not how the political factions have always aligned themselves. In FDR's day, conservative justices were considered 'judicial activists' for striking down democratically enacted New Deal legislation. Is this evidence of mere political obstructionism? I don't think so. Rather, the concept of judicial activism is not used the same from instance to instance, and it is a cause of confusion.

The judicial activism of today that conservatives rail against as 'legislating from the bench' might be renamed 'judicial social engineering'. The state supreme court ruling requiring Vermont to enact Civil Union legislation, for example, was not upsetting to two different types of conservatives on two different grounds:

1. To limited-government conservatives, the court was seen as forcing the state to assume an inappropriate role in structuring society itself. These folks would see the state take its cue directly from the culture, rather than allowing the culture to be shaped by the fickle goals of the state.

2. To cultural conservatives, the court was seen as a body of political adversaries (i.e. liberals) enacting their own political agenda in the only way they could, since civil union legislation would never pass.

The judicial activism of FDR's time might be renamed 'assertive judicial review.' That is, the Court assiduously enforced the constitutional limits on another branch's powers. To liberals, this view seemed like obstructionism and pro-business cronyism, but remember the context of the time--governments in Europe were meddling in their countries' economies with a free hand, ordering citizen-producers about and sliding toward totalitarianism.


There are no black-and-white solutions to differences of perception about what constitutes judicial overstepping. Courts must stay within the letter of the law, for to allow full blown judicial social engineering would be to set up lawyers as a ruling caste. But let's be honest--no mainstream liberal is really advocating this. What liberals do often do is rely on dramatic test cases a la Rosa Parks to prove a point, and attempt to change policy. That was appropriate early in the civil rights movement, when the chance of legislative reform was virtually nil. But today, there is certainly a critical mass of support for progress on issues like gay rights, the environment, and civil liberties. Besides, which have had more pervasive impact: Gomillion v. Lightfoot or the Voting Rights Act of 1965? Missouri vs. Illinois or the Clean Water Act?

We should fight injustices in the courts when we must, but making policy in the halls of democracy is the hard work of enacting lasting, fundamental change.

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