Any time now â€“ maybe even during the too-few moments between my pressing â€œsubmitâ€ and this column going live â€“ President Obama is going to announce his appointee to replace David Souter on the Supreme Court. And before he and his (likely female, possibly Hispanic) nominee have even left the podium in the White House, a flurry of press releases will emanate from the offices of Republican senators, conservative think tanks and right-wing advocacy groups, all bemoaning Obamaâ€™s selection as an out-of-the-mainstream liberal and â€“ horrors! â€“ an â€œactivist judge.â€
It doesnâ€™t matter who the nominee is; the releases have already been written, Mad Libs style, and all they await are a name and a few biographical details. The reason why conservatives can be so efficient with their P.R. is because, in their hands, the term â€œjudicial activismâ€ â€“ like so many other previously sensible terms â€“ has lost all rational meaning. Theyâ€™ve rendered it just another pejorative in their campaign of Luddite bullying, another dirty name they can use to defame anybody who does something they donâ€™t like â€¦ and to gin up some cheap outrage among those who respond to such Pavlovian conditioning.
Funny enough, the term was introduced into the lexicon by a liberal, the Kennedy speechwriter and biographer (among other things) Arthur Schlesinger Jr., during the late 1940s. He didnâ€™t invent it as an insult; he didnâ€™t even suggest it was a purely liberal concept, at least not in the way that â€œliberalâ€ has come to be tossed around since the Nixon administration. He simply identified a â€œjudicial activistâ€ as a judge who believes the Constitution to be an â€œopenâ€ or â€œlivingâ€ document, broadly worded by the framers to encourage evolving interpretations as times and circumstances change. Itâ€™s an idea that dates back to Alexander Hamilton, who believed the Constitution to be an enabling, not a restricting, guide for the actions of government.
Thatâ€™s not a universally held belief, to be sure, but its employment as a guiding principle for at least some Supreme Court actions dates to the dawn of the republic, and Chief Justice John Marshallâ€™s institution of judicial review of legislation. The debate between judicial activists and advocates of judicial â€œrestraintâ€ was mostly an academic one until the Warren court began to shift the nationâ€™s social structure during the 1950s, with decisions like Brown v. Board of Education. Since then, conservatives seeking to maintain the status quo (and their own dominance over Americaâ€™s cultural and economic life) have lashed out more and more fiercely against the judicial branch taking a leading â€“ and sometimes anti-majoritarian â€“ role in reshaping our society on a more egalitarian basis.
Of course, the cardinal sin of â€œjudicial activismâ€ is Roe v. Wade, in which a slim majority of justices identified a right to â€œprivacyâ€ in the Constitution that isnâ€™t explicitly there. As the abortion issue took center stage in the culture wars of the last four decades, social conservatives have come to believe that overturning Roe v. Wade will require judges who view the Constitution the same way fundamentalists view the Bible â€“ as a finished, infallible document that is not open to interpretation in any way. Particularly not in a way that acknowledges the previously denied rights of women or racial or (heaven forbid) sexual minorities.
In fact, conservatives wouldnâ€™t even have used the word â€œacknowledgesâ€ in the previous sentence. Instead, through the years they have denounced desegregation and anti-discrimination decisions, equal-pay and sexual-harassment rulings, and the voiding of miscegenation and sodomy laws as the granting of â€œnewâ€ and â€œspecialâ€ rights to people who (in point of fact) were merely trying to obtain the same rights long denied to them by those in power. Nowadays gay marriage is the horrifying â€œspecial rightâ€ against which conservatives have taken to the barricades; opposing it requires unthinking unblinking fealty to Biblical text (or at least to some farkakte dictionary definition that intrinsically binds â€œmarriageâ€ to â€œprocreationâ€). It also requires turning a blind eye to the Equal Protection clause of the 14th Amendment, which says that â€œno state shall â€¦ deny to any person within its jurisdiction the equal protection of the laws.â€
The 14th Amendment, enacted in 1868 but taking its sweet time in the implementation, is the bane of â€œjudicial restraint.â€ It has necessitated wholesale changes to federal and state laws â€“ a process that is nowhere near finished â€“ and it created a huge opening for judges to determine that legislators (and, by extension, public opinion) arenâ€™t moving quickly enough to fulfill the Declaration of Independenceâ€™s long-delayed promise of equality for all.
It is when judges plow through this opening, rejecting discriminatory laws and government practices before legislators or the public are ready to see them go, that conservatives scream â€œjudicial activismâ€! Their belief is that when judges get out ahead of public opinion â€“ when one person in a robe (or nine of them) substitutes his or her judgment for the public will, as expressed through elections and lawmaking â€“ then democracy suffers. In their view, societal changes must come only via the majorityâ€™s expression of readiness for those changes, via legislation or referendum.
The problem with this philosophy is obvious. Generally speaking, laws â€“ whether Biblical or governmental â€“ have been designed to thwart, or at least regulate, the individualâ€™s baser instincts. Weâ€™ve pretty much all agreed that murder, robbery, fraud, bad driving and other human potentialities need to be controlled. But when it comes to regulating the ways in which individuals, and the state, act on their thoughts and beliefs â€“ and especially on their prejudices â€“ consensus can be much more difficult to achieve, particularly in a manner timely enough to redress the grievances of people who can show theyâ€™re being discriminated against. And when decisions on civil rights issues are left solely to legislators or voters, the fate of those affected is subject to the biases of the majority â€“ biases that are too easily manipulated via campaigns that play upon fear and ignorance. (The Prop 8 battle in California was a perfect example.)
In the case of gay marriage, majorities in 29 states have voted to amend their state constitutions in a manner that reflects their religious beliefs and/or prejudices, yet flies in the face of the 14th Amendment. Someday, inevitably, those provisions will be overturned â€“ either by majority vote or judicial fiat. But how long should gays and lesbians be forced to wait? If we had left it to the public and the legislatures, how many additional years would have been required to achieve the same result as Brown v. Board of Education? Or Mapp v. Ohio, which banned unwarranted searches and seizures? Or Loving v. Virginia, which overturned the remaining state laws banning interracial marriage? Each of those decisions was derided in its time as â€œjudicial activismâ€; today weâ€™re embarrassed that they were necessary.
Someday soon the same will be true of Romer v. Evans, which banned discrimination against gays and lesbians, and Lawrence v. Texas, which ended sodomy laws. For now, however, cases like those (and Roe, and various rulings banning religious displays, ceremonies and prayers from schools and other government-run facilities) are rallying cries for those who want to curtail the courtsâ€™ role in bringing greater equality to American society. Expect more pontificating on all these issues over the next few months, even though Obamaâ€™s nominee likely will encounter little actual difficulty in the Senate. If weâ€™re lucky, we might even be treated to another spectacle like â€œJustice Sunday,â€ the 2005 event organized by the Family Research Council that encouraged churchgoers to browbeat their senators into approving George Bushâ€™s crazy-conservative judicial appointees.
They might have a valid (though misguided) philosophical argument on behalf of judicial restraint â€¦ if it werenâ€™t for a pesky little court case, about a decade old, in which a group of conservative judges temporarily abandoned their principles â€“ and even evoked the Equal Protection clause â€“ in their effort to obtain not an advancement toward equality under the laws, but a desired political result. Their callous actions in the matter had a lot to do with Souter’s disillusionment, and his decision to leave the court as soon as he could. And the name of that case? Bush v. Gore.