OldSpeak
From Dred Scott to Gay Rights: The Controversy Over Activist Judges
By Kathryn Goodson
November 16, 2004
On October 8, 2004, during the second presidential candidate debate in St. Louis, Missouri, President Bush was asked by an audience member how he would respond to a vacancy on the U.S. Supreme Court. “I would pick somebody who would not allow their personal opinion to get in the way of the law,” he replied. “I would pick somebody who would strictly interpret the Constitution of the United States.”
The President then went on to describe characteristics he would not pursue in a judicial candidate. ”I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words ‘under God’ in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process, as opposed to a strict interpretation of the Constitution.”
Bush continued, “Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights. That's a personal opinion. That's not what the Constitution says.” Reiterating his criteria for selecting judges, the President again touched upon one of the strongest platforms of his political campaign—ridding the courts of “activist judges.” “I would pick people that would be strict constructionists,” he said. “We've got plenty of lawmakers in Washington, D.C. Legislators make the law, judges interpret the Constitution.”
It’s a familiar rallying cry among conservatives targeting “rogue” judges—almost always perceived as liberal—as defying the Constitution by inserting their own opinion in place of the will of the people. But although “judicial activism” has become a paramount issue for the Right, it is not strictly a conservative issue. In reality, the charge of judicial activism has received an excess of finger pointing throughout history from both sides of the political aisle, as it is now. In recent months, the Republican-led House of Representatives has voted to deny federal courts jurisdiction over any question related to a provision of the Defense of Marriage Act that exempts states from recognizing same-sex marriages forged under other states’ laws. The House also voted to bar federal courts from ruling on the constitutionality of the words “under God” in the Pledge of Allegiance. Indeed, the Bush Administration’s recent push for constitutional amendments that would bypass “activism” only lends itself to a deepening judicial dilemma, especially at a time when religious right leaders are calling on Bush to appoint “strict constructionists” during the inevitable and forthcoming revamping of the Supreme Court. Judicial activism truly is in the eye of the beholder.
“I am inspired by what seems to me hypocrisy by conservatives and a misconception among the public,” said Michael Klarman, James Monroe Professor of Law and Professor of History at the University of Virginia. “One who reads the papers and listens to political debate today is prone to believe that conservatives like Bush favor judges ‘who will apply the law, not make it.’ But both historically and at present, conservative judges are every bit as activist as liberals, just on a different set of issues.”
OldSpeak recently interviewed Michael Klarman on the topic of activist judges—a topic he has been overtly verbal about for many years. Klarman is the author of From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, an integration of twentieth-century Supreme Court decisions with the social and political contexts of the times. The book places the methodology behind the Justices’ constitutional decisions under a magnifying glass, revealing how much, and how little, Supreme Court decisions matter in the real world.
KG: Proponents of judicial activism claim that this is the only way to protect individual rights and achieve social justice. But is judicial activism more of a knee-jerk reaction, rather than a strict defining of the law, or is there some wisdom to putting these rulings back in the hands of the people?
Michael Klarman: Proponents of activism would say that only an institution insulated from politics, like the Supreme Court, can adequately protect minority rights from majoritarian oppression or long-term principles against the depredations of political expediency. Critics might respond that the Court does a lousy job of protecting minorities. After all, the Supreme Court protected slaveholders rather than slaves and failed to protect Japanese Americans from internment or political radicals from oppression during the McCarthy era. Also, critics might note that determining which minorities are entitled to protection is a value-laden judgment that courts have no particular expertise to revolve. For example, in the famous Dred Scott case, the minority protected by the Court was southern slaveholders. Most of us today think that the slaves would have been a worthier candidate for judicial solicitude.
KG: Judicial activism has been an increasingly discussed topic the last few months in both state and federal elections. Have there been other periods in American history where judicial activism was as examined?
MK: Of course. The white South criticized Brown v. Board of Education as activist. Progressives challenged the Court as activist from 1905 to 1937 when economic conservatives invalidated state and national economic regulation. The Jeffersonians challenged the Marshall Court as activist in the 1810s and 1820s. Overall, whenever the Court strikes down laws that some people like, it is accused of being activist.
KG: Right now, judicial activism is an incendiary issue for conservatives. Has it ever been a lightning rod for liberals as well?
MK: In the period around 1905 to 1937, it was liberals who attacked judicial activism by conservatives. Interestingly, there were two books published with the same title, Government by the Judiciary. In 1930, the book was written by a liberal; in the late 1970s, by a conservative. By and large, judicial activism has no inherent political tilt.
Also, it's true that today's rhetoric tends to be conservatives challenging liberal results as activism, as in the Massachusetts same-sex marriage decision or Roe v. Wade. But that is only due to the fact that liberals haven't fought back as well as they might have. Bush v. Gore is one of the most activist decisions in history, which makes it ironic that the current administration and fellow conservatives criticize judicial activism. Furthermore, many other Rehnquist Court decisions striking down affirmative action, minority voting districts, environmental regulations on the grounds that they interfere with property rights and the New Jersey public accommodations law requiring the Boy Scouts to admit gays on First Amendment grounds are all arguably “activist” decisions perpetrated by the right wing of the Court.
KG: In the second 2004 presidential debate, President Bush named Dred Scott as an activist decision in reference to Roe v. Wade, which is also considered an activist court ruling. You have written a lot about Brown v. Board of Education. What are some other seminal activist decisions?
MK: The problem in answering that lies in the fact that there is no easy definition of "activist." Anytime the Court strikes down a law, those who liked the law will call the Court "activist." But virtually everyone admits that it's appropriate for the Court to strike down some laws. So "activist" is just a pejorative label tossed around by those unhappy with particular results. The only way to make headway on what really counts as "activism" would require initial agreement on what it is judges are supposed to do when interpreting the Constitution. But there are lots of different methods for interpreting the Constitution, and no consensus on which are legitimate and which are not. Thus, we're unlikely to reach much consensus on what counts as activism.
By the way, critics of Brown in 1954 called it "activist." Nobody would do so today because we all think it's rightly decided.
KG: You have questioned the impact of the Supreme Court’s decision in Brown, arguing that they were only anticipating changes that were already underway. If Brown could have been considered twenty years earlier, should the Court have taken the case? Is there ever a situation where the Court has a moral responsibility to act to push progress?
MK: The Justices pretty much said they would not have taken the Brown case even ten years earlier. I quote a statement by Frankfurter to this effect in my book, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality.
Whether the Court should anticipate progress or act with a view to morally correct results are controversial questions. Most people are a little uncertain about entrusting unelected judges with open-ended authority to do the "right" thing. On the other hand, I think the best defense of Brown is that the Court did the "right" thing. There are some scholars who insist that this is exactly the right thing for the Court to do.
KG: If activist judges can be accused of allowing sociological research to influence major Supreme Court decisions, what, in the end, is the real-life damaging effect of using this research to make a decision? Is the exaggeration of activist judges and the influence they have over landmark rulings a bit overrated?
MK: The gripe with the sociological research in Brown was probably (a) that it wasn't very good research and (b) that a suspicion one can find a sociologist somewhere who will say just about anything and that the law shouldn't vary with the changing views of social scientists.
KG: The news is shellacked lately with headlines of jurists openly attacking one another on the topic of judicial activism. Do you believe this inner disruption of sorts might damage the group’s ability to make a sound solution when a particular case comes up? And what kind of cases might suffer the most?
MK: Yes, judges today, especially in places like the Sixth Circuit, seem just about as divided as is our politics. I don’t find this very surprising since I think constitutional law is mostly about politics. If people disagree so deeply about politics that they seem to be almost inhabiting different worlds, I would expect the same thing about judges. Thus, Bush v. Gore.
KG: What is your take on the growing trend to strip federal courts of their power?
MK: I do believe that the courts have expanded their authority over constitutional issues too far, but I also think that it matters less than people think because court decisions don't affect the world quite as much as people think. To the extent court decisions do matter, my view is that turning issues over to judges tends to benefit those people who think the most like judges—well-educated, relatively affluent people. To give such people greater control over policymaking through judicial review is, I think, anti-democratic.
KG: Since the mid-20th Century, the Court has increasingly broadened its reach. Is the Court still moving in that direction? And is there any scenario where you see the Supreme Court restricting itself and decreasing its powers?
MK: Yes. This Court has broadened its reach more than anyone could have dreamed 20 or 30 years ago. Resolving a presidential election is something no one could have predicted of the Court before 2000. But even leaving that to one side, today's Court seems to see itself as the ultimate arbiter of all pressing social disputes—single-sex colleges, affirmative action, the right to die, campaign-finance reform, gay rights and so on. It's hard to think of any pressing social policy disputes that today's Court would not eventually tackle.
KG: Is judicial activism more of a problem in the federal courts, as opposed to the states and also appellate courts?
MK: Perhaps federal judges are more willing to be activist because they don't have to stand for re-election and state judges do. For example, after three California Supreme Court justices were recalled by the voters around 1986 for their unwillingness to enforce death sentences, I'm sure California judges were somewhat cowed into restraint. But having said that, it was the Massachusetts Supreme Court, not a federal court, which said there was a constitutional right to same-sex marriage in 2003. Therefore, I doubt whether state judges are less activist in any meaningful sense.
In terms of the cross-country comparison, I am aware of no other country in the world that has assumed to itself so much control over social policy as has ours. It's interesting to note that the Japanese Constitution, written by General McArthur's staff after WWII, has an explicit provision for judicial review, which, of course, our Constitution does not. Yet, the Japanese high court has invalidated five or six statutes since WWII, whereas our Supreme Court does that in a good month! This shows how little the words of a written constitution matter and how much the practices and mores do matter.
DISCLAIMER: THE VIEWS AND OPINIONS EXPRESSED IN OLDSPEAK ARE NOT NECESSARILY THOSE OF THE RUTHERFORD INSTITUTE.
