Judicial Activism and Conservative Complaints.

Republicans on teevee often complain about judicial activism. Courts overturning censorship, school prayers, and state definitions of marriage. All my liberal friends happily mock this as just being politically opportunistic, and say they just want conservative judicial decisions, like Bush v Gore. I’ve been thinking about this, and feel the conservative complaint against judicial activism is more rigorous than just that. For conservative readers, hopefully you’ll appreciate the thought out and (hopefully) objective defense, and for liberal readers hopefully you’ll understand more of this vicitimization complaint we’re hearing from the dominant political party. All are invited to the after-party in the comments section later, to give me counter-examples and imbibe apple-tinis.

Now, a clearer definition of what “judicial activism” is might be helpful here. I feel this is best: when the democratic process creates a law that is supported by a majority of the people, and it is overturned by the courts. It is clear why this definition is a good start, although there are easy complaints against it. Many would claim that only when you stretch the meaning of the constitution is it activism, but I feel any non-controversially unconstitutional actions are unlikely to ever pass the legislative process. (If people agree the Constitution or whatnot prevents it, they generally don’t try to pass it. Yes, people might rationalize and just claim the Constitution doesn’t apply here because it is convenient to them, but if the majority of the public believes this, then clearly there is too much room for interpretation going on.) Also, it’s not just one judicial injunction or another, but also to be a full overturning that means no amount of popular will and convincing can change it back.

1. The major issues of the day that have been affected by judicial activism are friendly to liberals. Flag-burning, role of religion in schools and public places, abortion, expanding marriage, criminal rights, conservatives feel they have solid majorities who want the conservative answer to this issue (at least locally speaking), and are foiled by arbitrary judges. How have liberals been similarly foiled by the courts? The second amendment is certainly annoying to gun-control activists, but since the SCOTUS arbitrarily decided it didn’t apply to the states while other amendments did (such as the first), it’s always been much more a matter of getting gun control legislation through, not it getting overturned. Any Democrat might point to Bush v. Gore of course, but I feel it was a very different scenario (and not enough Democrats seem to appreciate this) where the courts had to step in somehow, and it was picking between two very ambiguously (and corruptly) interpretations of the popular will. There is much reason to be upset with the result, and the blatant political consideration that was behind it is worthy of mockery, but it’s not the same as if the country routinely and clearly elected a Democratic president and the SCOTUS routinely just installed a Republican instead. There has been a decent amount of action about limiting federal workplace laws by the courts, but I don’t think this is very widely known or fuel for grassroots anger.

2. Having an issue overturned by the court bites. It’s one thing to lose an issue democratically. Often, the only people who can be blamed are the electorate, who’s will is considered a purer source of legitimacy than anything else in this country (although I fear that this is getting chipped away at). And you have a recourse, of “educating the public” and legislatures better. When it’s an autocratic judge, it is easy to focus a movement’s hate on that judge – especially since there is nothing else you can do to move the law forward. And without any spirit of compromise necessary to pass judicially written laws, no side even gets a bone tossed to them or ability to limit the extremes of the situation (such as in my previous post on abortion politics). All of these create far more anger than a law passed through Congress or the state legislature.

And let me note I worry this creates problems for the democratic process as a whole, because these energies will continue to express themselves. Politicians can eternally run against unpopular judicial decisions, but expect no accountability from their supporters when they have done nothing to overturn those laws (because they can do nothing). When a President who controls Congress and has expended a great deal of political capital can campaign, after 4 years in power, about how he is going to reform the system and still has to change various insider elements (like judicial decisions), this is very bad! We are electing people who we don’t hold responsible for what the government does or other results, and this distracts from judging them on the things we do get results for.

3. Lawyers are liberal. This is not a fact, but a perception. For various reasons (education level, ethnic identities, association with government bureaucracy, standing in opposition to large corporations, coastal locations, guild donations), lawyers in this country are affiliated with the left. “Judicial activism” among conservatives isn’t just a motto, but it’s a whole story. They feel an urban elite and minority uses the courts and complicated legal realities to achieve laws they can’t win otherwise. This may be inaccurate in many ways, but it’s something the Democrats have to deal with in addressing “judicial activism” as a political button the Republicans push (and nominating a trial lawyer as VP, or even a P in 2008, is perhaps not the best solution).