Rational Politics Chapter 3: The Courts And Judicial Activism

One of our democracy’s great debates of the last few years has been the notion of “activist judges” and their effect on government. Although the definition of an activist court or judge is murky, the term seems to describe a judge willing to rule against a law passed by popular assent (such as a referendum making gay marriage illegal), or one willing to move against standing precedent and/or the traditional interpretation of the U.S. Constitution. Much of the ire over this issue is actually generated by the high courts of individual states, with the feelings coming to the surface of the nation’s conscience in nomination hearings or high profile cases.

Call it Civics or U.S. Government, but Americans graduating from high school have taken a class that describes our system of government and its history. We know of the three branches of government (at the federal level); executive, legislative, and judiciary, and their respective roles. Within these classes the concept of checks and balances is an imperative behind only “one citizen, one vote” in its importance. Given this reality, my question to you is; how does the Supreme Court exercise checks and balances in our system? The answer of course, is that the Court invalidates laws or the enforcement of a law that it deems unconstitutional. That is to say, they practice judicial activism.

The Rational Middle feels that the debate around judicial activism is another issue of political branding polluting the normal discourse of government. Typically (at least in the last 20 years), charges of judicial activism have been reserved for courts and nominees that employed (or were perceived to employ) a liberal point of view. The upcoming nomination fight to replace Justice john Paul Stevens has been prefaced by commentary that President Obama resist the urge to nominate an activist judge, or one who is a “liberal ideologue”.

That we have come to a point when the President is not allowed to nominate a qualified individual with whom he or she shares a reputable system of belief is sad commentary on our democracy. There is nothing unsavory, un-American, or evil in Liberalism; simply put, it is a different view of the role of our democracy in the marketplace than Conservatism. The late movement to brand Liberalism as some equivalent of Marxist theory (or more laughably, Fascism) is regrettable and dangerous. Much of the mood is dictated by political profiteers lecturing from chalkboards and pontificating on social networks. Yet I am unable to place this travesty at the feet of Republicans or Republican-leaning news-entertainers, because the responsibility for its origin lies squarely with Democrats (and one Democratic hero in particular).

In 1987 Ronald Reagan nominated a conservative legal scholar named Robert Bork to the Supreme Court. Bork belongs to the originalist school of constitutional thinking, a philosophy that espouses the limitations of government to the perceived scope of a clause espoused by the writers of the U.S. Constitution. The school of thought does not necessarily limit the reach of government, but rather limits the reach of the Federal Bench in deciding issues within the democracy. Mr. Bork was (and is) a supremely respected jurist who gave many of today’s best minds (liberal and conservative) their starts. But this was 1987 and the Democrats, fresh from Iran-Contra and unwilling to see Reagan nominate a conservative to tip the balance on the Court, drew a line in the sand.

On July 1, 1987, Ted Kennedy rose and delivered a blistering speech denouncing Bork. In the speech, Bork became the Conservative boogieman, tarred and feathered by a string of lies and twisted context. In a political sense, this moment is more damming to me of Kennedy than was Chappaquiddick. The speech was also the prelude to the kind of nonstop construction of straw-men that we see on Fox News with regularity. All of the habits that independents, progressives, and liberals hate the most about today’s discourse were on display in the Bork affair. Why then, should this process be any different? Because the politics often obscure the reality of the pick.

John Paul Stevens is the leader of the liberal wing of the Court. Yet he was nominated by Republican President Gerald Ford. The important point to realize, when considering nominees for the Supreme Court, is that those who pass muster, who make the grade for nomination, have several things in common;

  1. They revere the rule of law and an ordered society
  2. They are constitutional scholars who have devoted themselves to the study and understanding of the document and its place in our nation
  3. They are brilliant, fundamentally rational, and generally mature enough to stay above the political fray

Please note the absence of any political test in this list. These nominated individuals have a funny habit of doing their jobs well. They tend to decide cases on individual merit and with a strong idea of context. It is a peculiar idea of interest groups and politicians that they can measure the liberalism or conservatism of a nominee and determine how they will affect the balance of the court. In short, the academic rigor and temperament of a prospective justice is far more relevant than a perception of that individual’s political inclinations. Looking again at Robert Bork, we see that he has repeatedly denounced what he calls the “NRA view of the 2nd Amendment”. Imagine the consternation in Republican circles had Robert Bork cast the deciding vote in a 5-4 decision upholding Washington D.C.’s ban on handguns!

The way our Supreme Court, and its feeder Appellate Courts work, is slow and steady. By design, social change happens slowly in America through a repeated process of state laws and state judiciary opinions and the follow-ups in the Federal courts. Ours is a majority rule nation, with the courts generally acting as a slow working braking force in protection of the rights of those outside of the majority. In this nation we are more or less equal parts conservative and liberal, and the liberal or conservative inclinations of a nominee to a court should not play a role in that process.

Is the individual sufficiently experienced with constitutional matters? Does the individual possess the training and experience to be effective in the particular setting of the court. Finally, does the history of the individual suggest a rational pattern of judgment; one that indicates an adherence to the standards of impartiality and critical thinking that the position demands. It is not important whether that rational pattern of judgment be a conservative or liberal pattern, it is only important that it be honest.

The Rational Middle looks forward to hearing your judgment…