March 18, 2005
Judicial Activism’s Perfect Storm

By Thomas Lifson

After six decades of expansion, the tendency of judges to impose their preferences on society, rather than simply interpret the law as written, may have reached its apogee. Judicial activism, as this writing of law from the bench is known, faces a confluence of forces which promise relief for the principles of Constitutionalism, and for the American people they protect. The trend of judicial activism morphing into judicial tyranny faces a perfect storm. Here are some of its key elements.

The American Public Is Paying Attention
High profile decisions in which judges nakedly impose their preferences have been accumulating at an accelerating pace. It is no longer an unusual occurrence for Americans to turn on their radios or TVs, or log onto the internet to discover that a judge somewhere has concluded that homosexual marriage is a Constitutional right, or that the death penalty for adolescents has become “cruel and unusual punishment” in the last 15 years, or that the phrase “under God” should be stricken from the Pledge of Allegiance, or that public display of a Christmas crèche is forbidden, while display of a Islamic crescent is not. A federal judge in Kansas City actually imposed tax increases on citizens, in order to fund a lavish “magnet school” program, as part of a desegregation scheme of his own invention, and which ultimately failed miserably in its goals.

Many of these cases are symbolically connected to many people’s self-identity, or to institutions to which they have passionate attachments. Others affect the self-interests or perceived safety of ordinary people. The law is not some abstract notion or set of principles to them, but rather an ongoing force affecting their lives. Accordingly, public interest in the composition and conduct of the judiciary at all levels has never been higher.

Abortion Policy Is An Increasing, Not A Receding Irritant
Of course, the lodestone of judicial activist decisions remains Roe v. Wade, in which a wholly fictional “penumbra” of the Constitution was invented to justify judicial control over one of the most controversial, significant and emotion-filled matters in the sphere of public debate, abortion. The decades since Roe was handed down have not cooled the passions or solidified public acceptance of its dictates, but rather have aggravated discontent. Today, both political parties find themselves required to take a stand on abortion, and it is the Republicans, who generally dissent from Roe, who hold the political advantage on the matter.

Public Awe Of The Judiciary Is Receding
Judicial activism ultimately depends on public acceptance of the rightness of judges handing down their decrees from Olympian heights. To the extent that judges carefully cite principle and precedent, this awe is reinforced. But conversely, when judges cite ephemera-like public opinion polls and current sociological research, they come to be seen as mere human beings with opinions - like the rest of us.

As never before, the new media are able to focus on instances of judicial misconduct, absurdity, and personal misbehavior among judges. Bill O’Reilly of Fox News Channel has become the number one program on cable news with his regular criticism, by name, of judges who hand down outrageous decisions. Some have even left the bench after his unwelcome attention.

Judicial activism consciously rejects tradition as a guide. This disrespect for the guidelines of the past extends to bricks and mortar. Even when they had to be skyscrapers, courthouses were traditionally designed with the architectural accoutrements of Greek and Roman temples, and judges wore the robes of high priests in order to inspire awe, and therefore passive acceptance of authority. More recent trends in courthouse architecture have substituted the bland features of modernism and postmodernism, which fail to inspire even affection, much less awe. The inhabitants of buildings like the new wave of federal courthouses send the implicit signal that they are more kin to the corporate bureaucrats in adjacent office buildings than they are to the god-like seers and priests of classical antiquity.

Judges and justices are increasingly seen as flawed human beings, rather than as principle-driven protectors of an impartial system. The very nature of judicial activism exposes itself to this perception. George Neumayr cuts to the chase on this point:

If the law represents nothing more than the will of whoever has the most audacity to hijack it, won't it occur to the American people at some point that they too can join in the nihilistic jostling? What if the people thought, "the law is just the will of the strongest," and marched on courthouses and threw lawless judges out on the street? What appeal could these judges make to them -- "You must follow the laws that we don't"?

Nobody sane thinks it is a good thing that judges are targeted for violence. But Chicago and Atlanta have both seen outrageous instances of criminals physically and violently expressing contempt for the judiciary in the past few weeks. The unthinkable is clearly becoming more thinkable, at least for the most deranged segment of the population – precisely the group which finds itself in closest contact with the lower levels of the judiciary. They obscenely demonstrate that judges are, indeed, merely mortal, in the most literal sense.

The Supreme Court Is At A Turning Point
Judicial activism received its kick start from the Supreme Court of the United States under Chief Justice Earl Warren. Warren, who had approved the internment of Japanese-American citizens during World War II, including native born second and third generation individuals, may have had a guilty conscience behind his zeal to reform social inequities. His pre-court career was as a political policy-maker, the governor of California. It was therefore natural that he assumed an instrumental view of the power granted to the federal judiciary. His leadership, much-praised in the liberal press, served as a shining example to other Justices, to members of the judiciary, generally, and to professors of law and political science, who use their institutional positions to grant prestige to those of whom they approve.

Today’s Supreme Court inevitably faces substantial changes in its membership. While appointments to the Court have always been of public interest, today’s environment makes both the stakes and the visibility of the next few appointments greater than ever before. If President Bush is able to appoint two or three new justices to the Court, including a new Chief Justice, there is the possibility of the Court signaling a retreat from activism, and legitimizing a return to what has been called “originalism,” the modest belief that the writers of law and the framers of the Constitution should be merely interpreted according to the actual words they wrote, not redefined and redirected by inhabitants of the judiciary.

Powerful Voices Advocate A Return To Originalism
Justice Antonin Scalia, widely recognized as a brilliant man and caustic wit, has begun speaking out in public about the abuses of judicial activism. It is rather unusual for a Justice to behave in this manner. It is even more unusual for a Justice to be as funny, erudite, and accessible as Justice Scalia. Even those of us lacking in legal education can follow, enjoy, and be enlightened by Justice Scalia’s speeches, opinions, and dissents. C-SPAN features his speeches and symposia, making them widely accessible.

Mark Levin, WABC radio talk show host and president of the Landmark Legal Foundation, has written an excellent new bestseller, Men in Black, written for a lay audience, denouncing judicial activism, and outlining practical steps to reverse its course. I purchased my copy at the Costco store serving ultra-liberal Berkeley, indicating the widespread interest in his book, even in the bluest of blue state locales.

The blogopshere, with many blogs produced by law professors, lawyers, and others interested in the issue of legal activism, is another collective voice debating the topic, one which bypasses the former monopoly held by liberal media organs, which mostly supported activism with great enthusiasm.

The Republican Senate Majority Seems Inclined To Break Filibusters of Judicial Nominees
Fortified by electoral success in 2004, most specifically the defeat of Minority Leader Senator Tom Daschle, GOP Senators are openly threatening to change Senate rules (requiring only a majority vote), to forbid the application of filibusters to judicial nominees. Since the year 2000, Senate Democrats have broken with tradition, and repeatedly used filibusters to prevent judicial nominees from receiving an up-or-down vote on the Senate floor. They have dubbed the GOP threat to change the rules “the nuclear option” – a clever bit of hyperbole. But the GOP has countered, and renamed this tactic “the Constitutional option” – equally clever, and better-grounded in reality.

The Democrats’ Arguments Will Not Prevail In The Public Arena
Since the Constitution specifies that only a majority vote is required for confirmation, the Republicans have a very good case to make to the American people, should the Democrats stupidly follow-through on their threat to shut-down legislation in the Senate, in response to a rules change. Already, Minority Leader Senator Harry Reid has equivocated on the threat, admitting that war-making and national security issues will not be blocked.

Moreover, the other rhetoric being employed by the likes of Senators Byrd (who employed the filibuster to stall civil rights legislation), Schumer, and Clinton does not withstand the kind of extended scrutiny a public blow-up would entail. Characterizing a filibuster shutdown as a peril to “free speech” (Byrd) is absurd, since no one will unable to express his or her views on the matter. Citing the description of role of the Senate as a “saucer” to “cool” the passions of the House (Schumer) will hold no coffee, either. The rule permitting filibusters was not written into the Constitution, and the primary characteristic of the Senate making it less subject to popular passion, at the time the phrase was coined, was its indirect election via state legislatures, a practice ended a century ago. And Senator Clinton’s strident appeal, with clenched fist, to “tradition” is laughable, given the recent genesis of judicial appointment filibusters.

If and when Democrats force the issue by obstruction of Senate business, they will look ridiculous, continuing a recent self-destructive trend. The fact that Minority Leader Reid is about as un-dynamic and unappealing a spokesman as they could select only amplifies their inability to persuade anyone but loyalists.

There is thus every prospect that substantial changes in the membership of the Supreme Court will take place. With a new Chief Justice to lead them, the Supremes will signal a new era in the judiciary. While it will take time for these changes to filter down to state and local jurisdictions, and many obstacles remain, it is quite possible that future historians will observe that 2005 marked the zenith of judicial activism.

Thomas Lifson is the editor and publisher of The American Thinker.

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