Activist judges… there ought to be a law but would it be upheld?
When the founding fathers set up the framework for our system of government, the three branches were established as a checks-and-balances system for one another. That’s Civics 101 stuff, but somewhere between 1787 and today, the intent and practice of all three have changed, including, unfortunately, the Judicial Branch. So-called “activist” judges, who have long been present in the lower courts, now appear to have made their way onto the highest court in the land, the Supreme Court. That too may be nothing new, but it does beg the question: when did activist judging become acceptable?
Funny, but I don’t remember anything on the order of a national referendum that the public voted on saying, “Oh, sure, if someone has a political agenda, they can rule from the bench. It’s okay to legislate law, and not necessarily strictly interpret the Constitution, as the founding fathers intended. You can ignore that if you want.”
Yet, that seems to be what we’re facing, and perhaps now, during the Senate Judiciary Committee’s confirmation hearings on Supreme Court nominee Elena Kagan, is a good time to examine the process that, knowingly or not, may be allowing it to take root in the building that bears the inscription “Equal justice under the law.”
Kagan, President Obama’s nominee for the Supreme Court, once called Aharon Barak, the retired president of the Supreme Court of Israel and a judge universally regarded as one of the most liberal activist high court justices in history, “my judicial hero.”
“He is the judge who has best advanced democracy, human rights, the rule of law and justice,” stated Kagan in 2006. Awww, that’s so nice, but Barak has been recognized across the political spectrum as one of the most liberal activist judges, decried by some legal eagles in this country as “the worst judge in the world.” Not only does he unapologetically rule the way he wants, he’s been known to encourage it as common judicial practice.
Earlier this week during her confirmation hearings, Kagan said politically she’s a Democrat, but told Sen. Jeff Sessions, top Republican on the Senate Judiciary Committee, “My politics would be, must be, have to be completely separate from my judging.” Okay, but did she mean it?
Seriously. Did she? Or is she simply telling the committee members what they want to hear to get their confirmation votes? It’s a legitimate question. After all, these are lifetime appointments; once they’re made, it’s “‘til death (or retirement) do us part.”
Recent example: on June 28, the Supreme Court handed down perhaps the most consequential decision of this term in the McDonald v. Chicago gun rights case. In a lengthy, 200-page opinion, the Court held in a narrow 5-4 decision that the right to keep and bear arms is a fundamental right. As a result, the Chicago gun ban was struck down.
The four remaining justices, including the Court’s newest Justice, Sonia Sotomayor wrote a dissent on how and why the right to own a gun is not fundamental, and therefore cities and states should be free to regulate or ban them. Now, what’s most interesting about all this is that it completely contradicts what then nominee Sotomayor said during her confirmation hearings just last year. In response to the question of whether it is settled that the Second Amendment secures an individual rights, Sotomayor told Judiciary Committee Chairman Sen. Pat Leahy, “Yes, sir.”
Hmmm. So how does that answer square with the recent dissent? The one that said, “I can find nothing in the Second Amendment’s text, history or underlying rationale … to protect the keeping and bearing arms for private self-defense purposes.” It doesn’t. The dissent’s statement is, however, consistent with the decisions Justice Sotomayor joined when she was an appeals judge on the Second Circuit, which drew Second Amendment defenders to oppose her confirmation to the Supreme Court in the first place.
And liberals can make a similar argument for justices they find suspect. For instance, the NAACP opposed the appointment of Clarence Thomas based on his criticism of affirmative action and the National Organization for Women had suspicions that Thomas might not be a supporter of Roe v. Wade. During his confirmation hearings, Thomas repeatedly maintained that he had not “formulated a position on the Roe decision,” which could be construed as an activist playing possum until the conditions are right to reveal himself.
Between the latest push for Woodrow Wilson-esque liberal progressivism on the left and neo-religious hard-core conservatism on the right, activism can wear two faces. What should bother us all is the notion, which is arguably now part of the fabric of our government, that one or the other is somehow the norm. Conservative legislators softball a nominee to one of the various courts over their views on Roe v. Wade, while the other side predictably votes against them. And vice versa.
Political pundits banter about how a nominee would rule based on their perceived views on abortion or commerce or gun rights, but why is that even appropriate dialogue? Justices should be completely impartial and use the Constitution, even some of the more vague, grayer parts as their sole guide.
Liberals who champion progressive activism may want to reconsider that position. Stacking the court today with judges who will rule along party lines when it comes to decisions involving the Second Amendment and Healthcare Reform is one thing, but imagine a few administrations and congresses down the road when the complexion of the Supreme Court is different and some right-wing conservative activist judges decide to put their stamp on decision involving Roe v. Wade. How will you like that activism then?
If she’s confirmed, perhaps Kagan will, as she told the Senators, keep her politics separate, but frankly we’ve got just cause to be skeptical. Justice is supposed to be blind, but these days it’s more like pretending to be, keeping one eye open to see who’s looking.
Additional sources: Wikipedia, TownHall.com and CBSNews.com.