Tuesday, May 26, 2009

What Exactly is An Activist Judge?

I've been hearing a lot about Sonia Sotomayor being "activist" which from all (rational) accounts, is not supported by her record. Some are saying that when Obama cites 'empathy' as a quality he is looking for in a judicial appointment, and Sotomayor is reported as citing her Latina heritage as a factor in her decisions, that these are examples of qualities defining an "activist" judge. ''

To address the issue of empathy, it is clear that Obama is not looking for a judge who will rule on feelings, but rather on who will be empathetic in exercising their judicial role. Empathy is the ability to "walk a mile in someone else's shoes" or try to see the world through someone else's eyes.

The argument that Sotomayor's Latina heritage will affect future rulings is ridiculous: we all bring our history with us wherever we go and whatever we do. It informs our thinking and shapes our decisions. In reviewing just a portion of Sotomayor's decisions, she hasn't always made the decisions one would assume based on her gender, or disability, nor is she left or right. The consensus (so far) of those whose opinions I do respect appear to be that she is more moderate and will likely vote very like Souter.

The issue of activism is interesting and historically, has been seen more on the conservative side of the bench. In an op-ed published in the NY Times on July 6, 2005, Paul Gewirtz, a Professor at Yale Law School, and Chad Golder, a graduate that year from Yale Law, wrote that "activism" could best be defined as declaring legislation passed by Congress unconstitutional. Therefore, they looked at the history of the Supreme Court and how many times they struck down legislation and said:

"In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred."

Their research found that in the current court (2005), those considered most conservative were the most inclined to strike down legislation with Clarence Thomas, widely thought to be one of the most conservative, voting to strike down 65.63%. Below is the list of votes by justice.

  • Thomas 65.63%
  • Kennedy 64.06%
  • Scalia 56.25%
  • Rehnquist 46.88%
  • O'Connor 46.77%
  • Souter 42.19%
  • Ginsburg 39.06%
  • Breyer 28.13%

These numbers suggest that the more liberal side of the court (Souter, Ginsburg, and Breyer) tend to let stand Congressional legislation while the more conservative side is more likely to strike down legislation; one measure of judicial activism.

This kind of activism, however, is not a bad thing. The whole point of the Supreme Court is to ensure that all laws are administered in accordance with the Constitution. Cases that make it that far are heard because there is a Constitutional component - a right that has been violated. Laws are frequently passed (especially in this age of the voter amendments and propositions) that are unconstitutional. Laws are frequently passed by special interests (read lobbyists), after something has happened that leads to an emotional response (Meagan's Law, 9/11), or because of shifts in social movements. The beauty of our Constitution is that it is designed to (and does) protect the minority from the will of the majority - regardless of shifts in social movements, ideology, political party, religious movements, and special interests.

The courts then, are necessary to ensure that laws are not passed that take away rights that are ensured to us by right of birth in this country. The right to privacy, the right to habeas corpus, the right to a fair judicial process, etc.

Sometimes, we misunderstand our rights and the chattering classes love to debate the loss of rights that we never actually had, or feature individuals who think they've been wronged somehow (think Miss California - she had no freedom of speech during her pageant - a common misconception, and she wasn't punished for expressing it, she just lost). But I digress. So when the Supreme Court overturns a law, perhaps they are activist if you use the definition above, but that is their role. That is why we have state and federal Supreme Courts. Their function, their reason for being is to ensure that the laws that are written are not outside the boundaries of the Constitution, and to ensure that in the case being presented, that the law has been applied correctly.

Just think about some of the foolish propositions that have been approved, even some that sounded great at the time, but had disastrous unintended consequences because no one really thought through the long-term effects.

Just think of one right that you have that you value, and think about a simple majority vote taking it away from you. That is what judicial activism is all about. It is to protect you from that happening, to make sure that should you ever become the minority - and believe me, it can happen (disability anyone?) - the shifts in mood of the majority, the shifts of the economy, the shifts in political will, will not allow a simple vote, a simple "the will of the people" to take that right away from you.

Thanks for stopping by. Come back soon.

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