“Ultimately I am confident that the Supreme Court will not take what would be an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” – President Obama, 4/2/2012
Judicial activism is the idea that judges are “legislating from the bench,” essentially crafting new laws that run contrary to the will of the people, as represented by Congress and the President. Arthur Schlesinger coined the term in 1947, but the idea of judicial activism has been present from the beginning of US history. Arguments over the role of the courts stretch back to John Marshall greatly expanding the role of the federal government shortly after the founding of our nation, through Roger Taney concluding that African-Americans could not be citizens in the Dred Scott Decision, and into the modern era with FDR battling the Court over initiatives in the New Deal. Today, we see its fruits in the ongoing conservative fight to roll back the Roe v. Wade decision and, of course, the current attacks from the Obama administration against possible judicial activism concerning the healthcare act. The idea is not new and both sides of the aisle have used it in their political arsenal.
Edward Lazarus, in his 1998 book Closed Chambers concerning the modern Supreme Court, makes the point well:
Partisans on both sides wage a destructively misguided war against what they deride reflexively as judicial activism. For liberals, this judicial overstepping takes the form of every recent decision that has cut back or overturned a Warrenesque ruling of the past. Meanwhile, conservatives cry foul at every decision in which a federal judge finds the police or prosecutors to have violated constitutional rights or those that impinge on favorite political causes such as school prayer. (516-517)
These “convenient charges” clearly reveal that “activism is in the eye of the beholder.” But Lazarus continues: “judicial ‘activism’—of the right or of the left—is no sin unto itself….The sin is not judicial activism, which may be warranted and healthy, but judicial activism bereft of persuasion and its crucial ingredients: reason, consistency, and principle.” (517)
I agree that judicial activism is not a sin unto itself. However, I would go further and argue that these sins are bound to occur, there is little we can do to stop them, and they are simply the symptoms of schismatic political philosophies. The system of appointing judges in the US is extraordinarily partisan. Especially when it comes to the Supreme Court, presidents tend to pick appointees who are as far to their side of the aisle as possible who will still be able to win Senate approval. The vast majority of these appointees have demonstrable records as judges in lower courts, or at least significant evidence revealing their political predilections. Why would anyone assume that once the appointees attain the bench that they will drop all of these prior beliefs at the door?
Like many people, especially those who work in government, these judges hold fundamental political beliefs deeply. While some justices have changed political beliefs during their time on the court, this is not the norm, which is why it is often fairly easy to predict the votes of many justices on politically polarizing issues. Once someone has come to believe strongly in certain fundamentals, they are unlikely to be swayed without repeated, strong undermining of their positions. And these justices are much too intelligent to be logically undercut on a regular basis. Justices tend to stick to their existing political beliefs because they think they are true, not because they have a malevolent plan to rule by decree from the bench. Conservative justices are likely to strike down laws that expand the federal government because they legitimately believe the federal government largely gets in the way of liberty. In contrast, liberal justices are more likely to uphold laws expanding the federal government if they believe such expansion expands the freedom of less-privileged groups.
These views stem from more fundamental understandings of freedom. Conservatives tend to view freedom as “formal,” that is, a lack of limitations on doing something. Liberals on the other hand tend to view freedom as “effective,” that is, the provision of a feasible means for doing something that is desired. So in the case of healthcare, conservatives view our current system as free – anyone can buy health insurance and no one is stopping them. Liberals, though, do not see the system as free because many people cannot feasibly pay for coverage due to its high cost. These are fundamentally different understandings of freedom, and justices who hold one or the other view are not likely to suddenly become enchanted with the other.
Thus, what many label judicial activism I would simply label as sticking to your guns. People have different opinions; disagreement is bound to occur. A vote against the healthcare act is not a sign of ignorance; neither was a vote against Citizens United. Both examples merely showcase the justices’ varying political philosophies. Deciding whose political philosophy is best is in fact the ongoing experiment of any democracy, an experiment that will never end.
Source: http://www.economist.com/node/18557594
Last year The Economist ran an interestingly article that discussed how parole boards were much more likely to grant prisoners parole immediately after breaks for food (see chart on right). Clearly objectivity is an illusion. Not even science can be purely objective, as the act of observation affects the observed (as we know from the Heisenberg Uncertainty Principle) and greater precision is always possible.
Human psychology is extraordinarily fickle. We are pulled to and fro by forces beyond our recognition. As the overly objective Ebenezer Scrooge suggested, even a tiny bit of bad potato can have an outsized effect on the mind. Of course accusations of judicial activism will continue, but they are seldom warranted. The bulk of Supreme Court votes seem to align with logically thought out philosophical positions, even if we don’t always agree with them. And in the end, while judicial decisions can delay or speed the application of what most of us consider to be just, it seems that, at least in the US, justice has the upper hand in the long run anyway.
Filed under: History, Politics and Current Events Tagged: Affordable Care Act, effective freedom, formal freedom, Judicial activism, Obamacare, Supreme Court 
