On Judicial Activism

The NY Times has produced this article which details the staggering amount of conservative judges appointed to the United States Circuit Courts over the last decade or so. The impetus for writing the article is a case which was recently heard by the Eighth Circuit (which, as you can see here, is a combination of red and blue States). A recently passed South Dakota law forces any doctor who is giving advice to a woman contemplating abortion to tell her that "abortions terminate the life of a whole, separate, unique living human being." If the doctor does not utter those precise words, in that specific order, he has committed a crime. I will not here go into the unbelievably nonsensical nature of such a law and how it essentially robs doctors of autonomy and certain First Amendment rights. The law is relevant here because a group of doctors in South Dakota filed suit claiming the law was invalid and seeking to enjoin its enforcement. The District Court sided with the doctors. It deferred to scientists on the matter of whether human life starts at conception. An appellate panel upheld that ruling.

The Eighth Circuit, in a 7-4 decision, overturned the District Court's ruling, claiming that it was "objectively true that human life begins at conception." Apparently, the Eighth Circuit has been staffed with scientists, not judges. I mean...that has to be the case, or else how could seven of them be so sure about the truth of this matter when even the scientific world has yet to reach a solid consensus? Or perhaps, what is much more likely, the judges let their personal beliefs guide their voting in this specific instance.

I write this not to criticize the opinion or even the Eighth Circuit's thinly-veiled activism. What I have a problem with is the fact that not a single conservative commentator has called these judges out on their activist ruling. I speak specifically about all these religious conservatives and even United States Congressmen, who so vocally condemn "liberal activist judges" whenever they feel that those judges have abused their inherent Constitutional powers. Their main claim, of course, is that judges may only interpret the laws created by the legislature - they may not simply create new laws and rights whenever their intuition calls for it. Thus, when in Roe v. Wade the Supreme Court held that the Constitution implied a right to privacy, conservatives were outraged and immediately condemned the Court for its activism. They claimed, and still claim, that the Court was not interpreting the Constitution, but merely creating a new right out of thin air.

Interesting, now, how the tides have turned in the present case. Conservative judges on the Eighth Circuit have now "interpreted" the First Amendment in a way that allows a State to force a doctor to say words which he may not believe (or worse, scientifically disagree with). That's funny...I don't see those words anywhere in the Amendment. I guess the judges must have made that up.

Where are the activism cries? Where are those conservatives who were so concerned about the proper role of the judiciary? What ridiculous hypocrisy. This case reveals the true nature of those who employ the term "judicial activism." It's merely a code word, used by people who disagree with the substantive outcome of any specific case. It is a pejorative insult, slung by those who could not convince a majority of judges to feel the same way they do. And when those judges do agree with them, but employ the same judicial method that those people once abhorred? Not a problem...because they sided with us this time.

Some may say I'm being too partisan on this issue - that I'm not being fair to conservatives because liberals too only like judges who side with them on their issues. But that's not the point. Find me a liberal commentator, professor, scholar or politician who uses the term "activist judge" to describe judges they disagree with. There aren't any (or at least, so few in comparison to conservatives). The "activist judge" slander campaign was mainly a conservative attack on liberal judges. Thus, I believe I have every right to call out those same conservatives when their silence goes seemingly unnoticed by others. That silence speaks volumes about the legitimacy of the "activist judge" critique. It was, and still is, nothing more than a hypocritical slander campaign, leveled against judges who simply disagreed with conservative ideologies.

~JSK

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A few points, both in concurrence and contention.

On Hypocrisy
I looked into this case a bit, not being aware of it prior, and in my limited understanding of it, I have to agree with your point about hypocrisy. The justification for this being Constitutional was essentially that because the bill defined person, "an individual living member of the species Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation" that it was therefore acceptable to mandate this disclosure. This rather tautological argument does appear to be rather "activist" in nature. However, I do disagree with JSK's implied reasoning for why this is in violation of the 1st Amendment. He states that this is faulty at least in part because the state can force doctors to say something that, he may not believe (or worse, scientifically disagree with)." But since when is a personal belief in the truth of a statement a condition of of being allowed to remove oneself from mandatory disclosure laws? Drug companies must disclose "likely" side effects of their drugs, police officers must reiterate Miranda Rights, individuals can not distribute campaign literature unless they disclose from what group funding originated; none of these groups are waived from being forced into this speech because they personally do not agree of believe what is being said. The reality is, the arguments on both sides of this have motives that have less to do with any fundamental right and more to do with a certain policy that they agree in. I'm agreeing with your accusation of hypocrisy, but that charge more then goes around to almost everyone now.

The reality is that neither major party or the mainstream right or left actually believes in fundamentally protecting the Constitution. Social conservatives, as you put it, who base much of the claim for the overturning of Roe in steadfast beliefs in adhering to the Constitution and therefore interpreting it through a originalist viewpoint, are often the same people who are in agreement with expanding the size and role of the welfare state, all of which was declared unconstitutional under an orginalist interpretation. Likewise, those on the Left who have been outraged by recent actions on habius corpus, domestic spying, etc, and argue the their outrage is based in destroying the Constitution are the same people who don't seem to have any problem with Hilary Clinton's proposal, for example, of enacting a foreclosure moratorium, which is a clear violation of contractual rights and obligations as well as the Constitutional ban on post facto laws. Where is the outrage here, if the outrage were indeed grounded in the Constitution? The reality is, that very few people who claim that any given policy should be restricted based on Constitutional grounds actually fundamentaly believe that. It is just a means of appealing to authority in order to achieve the policy goal one wishes.

For example, both of our Presidential candidates have essentially stated they don't actually believe in adhering to the constitution. Obama, in a 2001 radio interview, before he was under the scrutiny of a Presidential campaign, was talking about the Supreme court, the civil rights movement and how it failed to redistribute wealth. He had this to say:

...the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution...

And that hasn't shifted and one of the, I think, tragedies of the civil rights movement was... [the]tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change.

Essentially he is admitting that the Founders intended to place constraints on the powers of the Federal government, specifically in this case the ability to redistribute wealth. He is then criticizing the Court for not "breaking free." Therefore, he has no intention of actually abiding by an objective Constitution, but rather having it "evolve". The entire interview can be listed to here.

Similarly McCain, in reference to his campaign finance laws stated:

"I would rather have a clean government than one where quote First Amendment rights are being respected, that has become corrupt. If I had my choice, I'd rather have the clean government."

So he does not fundamentally believe in individual rights either. Those rights are only protected in so far as the government does not see a more important national cause. But if that was the intent of the Founders, why have a Constitution in the first place? Why not just allow democracy to do whatever the majority deems fit?



On the Idea of Activist Judges
Though I agree with you on the hypocrisy point, my dissent is largely in how you seem to suggest that the notion of an "Activist Judiciary" is only a concocted one and the reality is that there are just differing "judicial philosophies." Though there may be hypocrisy from many of the messengers, that does not change the message, and this is a more then legitimate claim.

It is true that as the Founders would say, "reasonable men can disagree," but we have not been adhering to the notion of a constitutional republic for 70 plus years now. FDR began the dismantling of the Constitution and it has continued ever since. Many of his programs were deemed unconstitutional and therefore he tried to stack the court. He famously stated, "We have been relegated to the horse-and-buggy definition of interstate commerce." So he is saying then that there is an "old" definition of the Constitution. That therefore implies, there is a "new" version. This ultimately means he had no intention of abiding by Constitutional law as had been determined by years of precedent, but rather wanted the Court to become activist. Even the term "Progressive" has its roots in an understanding that we had moved beyond the need for the original meaning of the Constitution and the role of government, There was an acknolegment that advocates of such policies were not adhering to the Constitution as had been in the past.

FDR eventually got what he wanted over the years as he appointed judges that shared his desire. They overturned the recent precedent created when the court originally struck down his Railroad Retirement Act, National Industrial Recovery Act, and Agricultural Adjustment Act. How could this possibly not be "activist" when juts a few years prior, the courts had struck down any expansive definition of the interstate commerce clause? Now we have bastardized the clause to allow the Federal government to get involved in virtually everything and this is the legal backing behind the modern welfare state.

Likewise, Roe v Wade was similarly "activist." Roe's reasoning essentially derived from the following chain of logic.

1. No unreasonable search and seizure as well as no quartering of troops implies that there is a Constitutional right to privacy or at least in ones personal home.

2. Under this notion of this implied right to privacy, state contraceptive bans were deemed unconstitutional in Griswold v. Connecticut.
(So I'm in general agreement to this point)

3.Because Griswold had to do with reproduction, the right to privacy likewise extends to the notion of abortion.

This is a huge very week stretch to get to this last point. The argument for why privacy applied with contraceptives was because this act only occures in the privacy of the home (which is more directly implied in the Constitution) between intimate consenting individuals. Furthermore, and importantly, in order to enforce this law, it would require search and seizure within the home and investigation of sexual behavior. Abortion does not fit into this framework at all. However closely the two may be linked in purpose, they are worlds apart in terms of privacy. Abortions do not take place in the privacy of ones personal home, preventing them does not require investigation of private sexual behavior, and they involve persons(doctors) other than sexual partners. Furthermore, a commercial transaction occurs. If this broad of a definition of privacy where applied in general, then that means that all laws that states enact to regulate commerce, restrict use of drugs and other substances, control what can be manufactured, and mandate things ranging from required smoke detectors to barring the use of led paint in your home are all unconstitutional because they violate the principal of privacy. Obviously there are very few people, and even fewer who argue pasionatly about protecting abortion, that would argue for this.

The other component was citing the 14th amendment. A state law infringing on a fundamental right is reviewed under a rigorous "strict scrutiny" standard to detemine of the Federal Government has the power to overturn a state. The right must be "deeply rooted in the history and traditions" of the American people or "implicit in the concept of ordered liberty" at the time of the Amendment's enactment. But most states had laws restricting abortion at the time, an no one in the late 19th century was arguing abortion was "deeply rooted in history and traditions." So this argument is not only factually incorrect, but absurd.

Casey v Planned Parenthood more or less acknowledged how pathetic this reasoning was.

We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and, coming as it does after nearly 20 years of litigation in Roe's wake we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding.

So essentially the Court is admitting that the reasoning behind Roe was faulty (or at least is unwilling to reaffirm its reasoning), but it was only upholding its core principals because there was now precedent. But the only reason why there was precedent was because of faulty reasoning!

So I will wait and see what variations of precedent JSK is able to put together to argue for the legitimacy of these two examples I give. However, even if such a thing can be done, it can only be done so because we have had over 70 year are such lose interpretations of the Constitution, where there is virtually no restricts on the power of the state, and individual rights can be created and destroyed at the whim of a justice, so that a "reasonable" individual can now construct justification for basically anything. We are far gone from the days when we actually lived under constitutional government.

-EJB


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On Hypocrisy

I’m glad that EJB agrees with me that the Eighth Circuit opinion strays from a reasonable reading of the Constitution. He unfortunately disagrees with me on the First Amendment issue present in this case. His point, apparently, is that there are other places where individuals are forced to express certain speech that they may otherwise not want to. Let me first say that his rebuttal misses the mark by shifting the debate so that I must now defend his examples. Hypothetically, then, I could simply defend my original point (which was a literal reading of the First Amendment) by refusing to justify his examples and claiming that they too are unconstitutional. But I don’t even need to go that far, because his examples are inapposite.

My original point, of course, was not that the law was unconstitutional simply because the doctors might disagree with their forced utterances – that is merely an aggravating factor. The law is unconstitutional because it serves no legitimate government purpose. A law which violates any constitutional amendment must pass strict scrutiny – that is, it must be narrowly tailored to fulfill a vital government interest. This is where his examples break down. The Miranda warnings pass strict scrutiny because there is a definite and important government interest in making sure that those in custody are aware of their rights. This benefits both the apprehended and the government – the former because he may have been unaware of his rights and the latter because informing someone in custody of their rights will decrease the risk that they can get off on a technicality. Similarly, disclosure laws and product safety warnings serve the important government interest of protecting consumers from information asymmetries and bodily injuries. In the present case, however, the law cannot pass strict scrutiny. What is the important government interest here? Is it to protect life? Clearly it is not because 1) if the woman’s life is in danger, then trying to dissuade her from having an abortion does not protect life but actually does the opposite and 2) the judges have simply decreed what “life” is defined as! EJB correctly points out the tautological nature of their opinion. Judges cannot simply create an important federal interest by mere fiat.

I also totally disagree with EJB’s “reality.” The claim that people who oppose or support abortions “have motives that have less to do with any fundamental right” and more to do with “policy they like” is creating a distinction where there is no difference. That is, the “policy they like” is the protection of a fundamental right! Pro-choice supporters urge protection of privacy and bodily integrity. Pro-life supporters urge the protection of a “right to life.” Thus, there could be nothing further from the truth to hold that either side of this debate could care less about rights.

EJB claims that my accusations of hypocrisy “go[] around to almost everyone now.” Why? How are pro-choice supporters hypocrites for opposing this South Dakota law? Because they tacitly support mandatory disclosure laws or consumer protection laws? Please. I don’t see any justification for leveling this claim.

Apparently, one such justification is that both Presidential candidates do not abide by the Constitution. Here, EJB confuses activism for the notion of the Constitution as a living document. Obama’s comments cannot necessarily be read as “criticizing” the Court for not breaking free of the constraints. It seems to me that that entire quoted section is a defense of the Court – a claim that counters the oft-employed conservative attack of “judicial activism” during the Warren years. This is especially true considering that Obama is talking about the civil rights movement. I think something EJB fails to appreciate is the sui generis nature of the civil rights movement. Because the Constitution was a document that protected and ensconced slavery and racial bias, it was necessary to force a change in the system by straying beyond the literal words of the document. If this is “activism,” then count me in.

On Activist Judges

I am deeply saddened by my learned friend’s belief in the notion of “judicial activism.” He sets up a false dichotomy of “old” Constitutional definitions and “new” ones. This is only the case if you subscribe to the “originalist” school of Constitutional interpretation – a method of interpretation that is so riddled with fallacies that I could not hope to fully expound upon them here (here's an article that dismantles the myth of "originalism" pretty well, though). EJB’s assumption that because FDR disliked the way “interstate commerce” and been defined in 1790 and thus pushed for a more modern interpretation of that term must necessarily imply that judges were “activist,” ignores the simple fact that interstate commerce had actually evolved since 1790! The originalist viewpoint is self-defeating from the start – it assumes, incorrectly, that the Founding Fathers intended every word in the Constitution to be perpetually defined by that era’s parlance. The Framers were not this stupid. The judiciary cannot be this stupid. If that reading were true, then the only guns we could own would be muskets and flint-locks. “Men” (in terms of suffrage) as defined in 1790, would not include those who do not own land. “Cruel and unusual” punishments would mean only those punishments which were, at that time, considered cruel and unusual! The consequences of an “originalist” interpretation are absurd. As Professor Erwin Chemerinsky of Duke Law School puts it:

...specific intent originalism often leads to absurd conclusions.
If the Constitution's meaning is defined only by the drafters'
specific views, the Constitution could not govern the modern world.
Congress' power under article I to raise an Army and Navy could not
include the Air Force because that was not the framers' specific
intent.

Thus I agree that “progressive” means realizing the need to move beyond traditional definitions. This need directly coincides with the actual changing nature of American culture and technology. EJB seems to believe that if a Court overrules precedent, it is being “activist.” This is not the case for if it were so, it would mean that reasonable men could not change their minds on any opinion. That one definition of “interstate commerce” took hold and replaced an older one does not evidence “judicial activism.” It merely recognizes the changing landscape of the American economy.

And this is the real problem with anyone who uses the term “judicial activist.” They tend to level that claim simply because they hold an opposing viewpoint and did not get their way. To claim that a decision is “activist,” one would have to prove that the decision was entirely unreasonable and mere fiat. That the notion of “interstate commerce” broadened is true. That this new interpretation is irrational is just simply not true. The only evidence anyone who levels a claim of judicial activism can ever point to in the hope of proving total unreasonableness is that they disagree and that previous court’s disagreed. If that were enough, then why bother having a Court at all? Every issue would be settled, all words clearly defined. Change and growth would be halted entirely. We would live our lives under a law that pretended to adhere to 18^th Century standards. Does that really make any sense??

OK, so here we go with the Roe stuff. I’m not going to launch into some long-winded defense of the Supreme Court’s reasoning in Roe – not because I can’t, but because this is not a Constitutional Law seminar class. I don’t have the time or the patience to explain why Roe is not “activist.”

I will say this though – someone who claims that Roe v. Wade was “activist” must also claim that certain other subsequent cases were “activist” which relied on Roe or employed similar reasoning. These cases include Brown v. Board of Ed (ordering desegregation of schools), Griswold (holding that States could not criminalize the sale of contraceptives), Loving v. Virginia (holding that States could not criminalize interracial marriage), and Lawrence v. Texas (holding States could not criminalize sodomy). Like Roe, these cases rest on the undeniable fact that society evolves and has evolved since the writing of the Constitution. Thus, under an “originalist” interpretation method – to which, I assume, EJB adheres – there would be: 1) legally segregated schools; 2) State bans on condoms, birth control pills and other contraceptives; 3) State bans on interracial marriage; and 4) the criminalization of homosexuality. Is this what the Framers had in mind for our country? According to EJB’s flawed Fourteenth Amendment analysis, they did. Now, I cannot chastise my friend for incorrectly stating the standards since he is not in law school. The “deeply rooted in the history and traditions” of the American people idea is NOT the standard for finding an implied right. As Justice Kennedy wisely stated in Lawrence v. Texas, it is a starting point, not an endpoint. Supreme Court cases recognize the evolution of societal standards and do not – to the detriment of Justice Scalia – simply employ a “traditional” standard.

As far as Casey “acknowledging” Roe's “weak reasoning,” this point is wholly unsubstantiated. The quote EJB highlights says nothing about the weakness of the argument, but instead simply notes that the legal question that was before the Court in Casey did not involve the soundness of the Court’s method of constitutional interpretation. This is not in any way damaging to the Roe opinion.

The real problem, of course, is that any claim of "judicial activism" is hopelessly subjective and mostly inconsistent. Take EJB's response, for example. Nowhere can he adequately define what "judicial activism" is, although it's pretty clear he believes it exists and is adamantly against it. The closest thing I could find is this: "such lose interpretations of the Constitution, where there is virtually no restricts on the power of the state, and individual rights can be created and destroyed at the whim of a justice, so that a "reasonable" individual can now construct justification for basically anything." The use of words like "loose interpretations," "virtually no restrictions," "created and destroyed," "whim of a justice," and "construct justification for basically anything," already presume his conclusion (that judicial activism exists). What are "loose interpretations?" Who decides that? What objective standard are we holding these decisions up to? What's the difference between "creating" and "protecting" a right? Well, it will please EJB to know that in my two years of Constitutional law studies, I have seen plenty of arguments fail because they could not adequately "construct justifications." For instance, we do not have a right to vote. We do not have a right to life. We do not have a right to death. We do not have a right to dignity. We do not have a right to health care. These are rights that the Court refused to find in the Constitution. Perhaps one day, a new Court will interpret the Constitution to hold one or more of these rights impliedly. But just because we have not respected them previously, does not mean they are non-existent. The Framers even recognized this by adding into the Constitution the Ninth Amendment.

I know I cannot convince those of you who agree with EJB. But I will, however, suggest to you a fantastic book entitled "The Myth of Judicial Activism." It is a wonderfully coherent look at what is meant by the phrase and also a fantastic empirical study of past cases. If it does not convince you of the utter emptiness of the phrase "judicial activist," then I guess we're stuck with a worthless term for the indefinite future...

~JSK