Judicial Activism’s Perfect Storm
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.
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.
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.
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
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.
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
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:
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"?
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
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.
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.
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.
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
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.
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.
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.
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
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.
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.
Lifson is the editor and publisher of The American Thinker.
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