November 04, 2005

Activism Shmactivism

Hardly had the words “Samuel Alito” left President Bush’s lips before conservatives nationwide started gushing about Judge Alito’s judicial philosophy. President Bush insisted that Judge Alito had “a deep understanding of the proper role of judges in our society. He understands that judges are to interpret laws, not to impose their preferences or priorities on the people.” Senate Majority Leader Bill Frist lauded Judge Alito’s judicial restraint and his “respect for the limited role of the judiciary to interpret the law and not legislate from the bench,” a compliment echoed by Roberta Combs, president of the Christian Coalition of America, who called Judge Alito a “strict constructioninst who will not legislate from the bench.”

Apparently, conservatives have a deep aversion to a judge legislating from the bench or imposing his preferences on the people. However, this is not entirely true. What conservatives – and all of us, actually – truly have a problem with are judges who make decisions they do not agree with. There is nothing inherently wrong with a little judicial activism, it seems, so long as it gets to the right result. Pun intended.

The knock against judicial activism is that by interpreting statutes and policies governing touchy social issues, unelected (and unaccountable) judges are able to make decisions that thwart the will of the majority. The fear is that regardless of how the democratically-elected branches craft laws, the judicial branch can step in and impose its own perspective as a sort of super-legislature.

To an extent, this criticism is true: judges do have the power to interpret laws enacted by the elected branches to ensure that such laws are consistent with the Constitution. However, it is precisely because judges are the furthest removed from the people that they are able to do their job without concern for their own popularity or the popularity of their opinions. Interpreting the Constitution, of course, is not a popularity contest but a process requiring much thought and careful consideration.

Were conservatives genuinely concerned with the prospect of a super-legislating judge imposing his will over the judgment of the elected branches, they would undoubtedly be dismayed by a judge who repeatedly declared congressionally-enacted laws invalid. Yet, the two justices conservatives hold up as pillars of judicial restraint – Justice Scalia and Justice Thomas – have voted most often to overturn congressional action, according to a study by Paul Gerwitz of Yale Law School. Justice Thomas was ready to throw out law passed by a democratically-elected Congress two-thirds of the time.

Likewise, Judge Alito himself is guilty of this strand of judicial activism, having repeatedly voted to overturn laws passed by legislatures, including portions of the Violence Against Women Act and a law restricting carrying firearms near schools. The decisions of the legislatures in these cases were thwarted because of Judge Alito’s interpretation of the Constitution.

What is more revealing, however, is that Judge Alito was not always so willing to disregard the decisions of the legislative branch. On that most touchy subject of all, abortion, Judge Alito showed great deference to the Pennsylvania legislature when he voted to uphold an abortion restriction requiring spousal consent. Conveniently, Judge Alito was willing to show deference when he agreed with the legislature, but was less willing to do so when he did not. The will of the people, it seems, receives greater weight when it is in line with Judge Alito’s own personal philosophy.

Not that this is unique to Judge Alito or disqualifies him from a seat on the Supreme Court. It simply disavows the notion that conservatives have anything more than their own self-interest in mind when they scream “Judicial Activism!” These days, it is liberals who are up in arms about judicial activism. Senator Charles Schumer, speaking about the Alito nomination, commented, “What would really bother me is somebody who would want to make law.” Where President Bush and fellow conservatives see a judge who “does not legislate from the bench,” Senator Schumer sees a judge who may want to make law. They are of course looking at the same record of the same person and trying to squeeze politics into what should be (but certainly is not) an apolitical job. Reducing a judicial philosophy to a sound byte is always a misleading oversimplification and serves only the person making such a comment. Judge Alito is obviously very intelligent and honest. It is a shame the conversation surrounding his nomination – from both sides – is not.

2 comments:

Anonymous said...

1/22/06 - [the following letter to the editor appeared in the Commercial Appeal in response to my "Activism Shmactivism" column]

Muddying the Waters

In regard to Daniel Kiel's Jan. 12 Viewpoints guest column, "Hypocrisy rules in legislating from the bench," he doesn't understand what judicial activism is. It is not whether the judge makes a decision that you agree or disagree with. It is when a judge makes law from the bench.

There are many current and past examples. Busing for the sake of racial integration is probably the most outstanding. There was law that segregation was illegal. However, there was no law passed by any legislature that required buses to be used to racially balance any school system. It was judicial fiat that required the busing of millions of children in school districts all across the country.

Did it work? You be the "judge."

A second, very current example is the question of gay marriage. No state or federal legislative body in the United States has passed a law that legalizes or authorizes marriage between persons of the same sex. Yet there are judges who think they have the power to legalize or sanction such unions.

The list of cases involving judicial activism is growing. The most notable is the concept that there is a constitutional provision for the separation of church and state. There is none.

The First Amendment to our Constitution states that "Congress shall make no law restricting the free exercise of religion." Allowing prayer in school, the word "God" on our money and in the Pledge of Allegiance, does not restrict anyone's right to pray or not to pray. The First Amendment is about freedom of religion, not freedom from religion.

The role of attorneys in today's world is to muddy the waters of clarity. English law, especially tort law, was based upon how a "reasonable" man would view or react to a situation. Would a reasonable man, upon seeing a large hole in the ground, expect to be hurt if he got too close and fell in? But in today's world, it is the owner of the hole who has the duty to protect me from my own stupidity or foolishness. The reasonable man is dead.

Kiel's column didn't state what his agenda is, or what he intended to communicate. He muddied the water.

John J. Baker III
Memphis

Uneven Kiel said...

Unfortunately, the reader seems to have missed the entire point of the column, and in doing so, he encapsulates exactly the type of selective criticism of judicial decisions I criticize. The reader is correct: judicial activism is certainly when judges make law (though I think the reader is incorrect when he says I don't know what judicial activism is). What separates us is that I am willing to see, as the reader apparently is not, that all judges are capable of judicial activism. The reader's short-sighted and selective view of judicial activism is just another example that what truly bothers him -- and other conservatives -- is not actually judicial activism, but decisions he disagrees with, like court-ordered busing or same-sex marriage. For while these certainly could be considered examples of "making law," so could a judge's opinion that a ban on machine guns near schools was invalid. The law such a judge would be making would be that it is legal to carry machine guns near schools. And the judge would be making that law despite the fact that the democratically-elected Congress had passed a law saying otherwise. Judge Alito made this very ruling, of course, supplying his own dose of judicial activism to the world. But, the reader does not cite this example of judicial activism, and I'd argue it is for the simple reason that he happens to agree with the outcome. Unfortunately, so long as people view the courts through partisan lenses, this type of misunderstanding will persist. Until people are willing to truly consider both sides of an argument, the conversation surrounding "judicial activism" and nearly every other topic in our society will be "muddied" with partisan mischaracterizations, selective application of standards, and an overall juvenile tone.