Activist Judges and Judicial Review

The role of activist judges has been much in the news over the summer with the nomination and confirmation of Sonia Sotomayor to the United States Supreme Court. Many on the right equate democratic appointees to the judiciary as akin to unleashing the tortures of the damned upon civilization. Conservatives insist that judges rule as “strict constructionist” reading nothing into the Constitution that is not plainly inked on the ancient parchment. Liberals take a more Jeffersonian view that “…laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance to keep pace with the times”. (Thomas Jefferson to Samuel Kercheval, July 12, 1810)

There was much ado about the “empathy” standard that President Obama cited as a requirement for his nominee. Conservatives apparently desire robots to sit in judgment of our fellow citizens. Empathy is simply to understand another’s feelings. The Bible tells the story of Solomon, whom the scriptures say is the wisest man who ever lived, and how he made his landmark paternity decision by judging how the real mother would act concerning the welfare of her child (1 Kings 3:16-28). Solomon was empathetic, should our judges be no less wise?

Whether the angry right likes it, or not, whether they will admit it, or not, where we come from, socially, economically, religiously, educationally, and even ethnically determines our worldview, it affects how we relate with society, for better or worse. Judges are not immune from this phenomenon.

John M. Scheb II and William Lyons, two political scientists from The University of Tennessee researched the question of judicial activism in Judicial Behavior and Public Opinion: Popular Expectations Regarding the Factors That Influence Supreme Court Decisions (2001). The study found that “There is reasonable public support for the court basing decisions on public opinion or on the justices’ sense of what is best for the public”. The authors went on to say that, “the public believes that the will of the majority has less impact on the Court than it ought to have”. It seems to me that those on the vocal right are out of line with mainstream thought in our country. However, the study seems to suggest that the American public does not support radical and arbitrary changes to the laws of the land. Scheb and Lyons also noted that Americans desire the court to “be bound by the Constitution as the Founders conceived it”. We want to adhere to the Constitution in the intent of, if not to the letter of the law. Jefferson knew we would need to adapt our laws to fit the changing ideals of a free society.

Robert M. Howard of Georgia State University and Jeffrey A. Segal of SUNY Stony Brook found in a 2004 study that the Supreme Court only agrees to hear challenges to state and federal laws in 21 percent of the petitions brought before the Court. Liberal groups bring nearly twice as many requests as do conservatives, and Justices seem to rule according to their own ideology. Liberal Justices such as Brennan (1956-1990), Marshall (1967-1991), and Blackmun (1970-1994) sided with liberal groups somewhere in the 80 percent neighborhood, while only concurring with conservative groups about 30 percent of the time. Justice Thomas (1991-present) supported the cause of liberal groups at a 30 percent rate but that jumps to nearly 65 percent if it concerns a conservative cause. The authors also cited the rulings of Justice Frankfurter (1939-1962), who was known as a model of judicial restraint, in ruling 88 percent of the time for anti-union causes and only 29 percent in favor of pro-union causes, exhibiting that his “voting behavior was consistent with economic conservatism” rather than a constructionist view of the law.

The web site http://www.uscourts.gov/outreach/resources/supremecourtcases.htm cites a Yale Law School study conducted and published before Roberts and Alito were seated on the court that Thomas voted to overturn an Act of Congress nearly sixty-six percent of the time, while Clinton appointees Ginsburg and Breyer are the least likely to do so.

The 1803 case of Marbury v. Madison set the precedent of judicial review, so the concept of the Court overturning laws is nearly as old as America. Liberal ideology has given us many of the landmark cases that have made America great. Brown v. Board of Education (1954) overturned the Plessy v. Ferguson (1896) ruling that had established the ridiculous “separate but equal” doctrine. Brown effectively ended school segregation in America, although it still took years to become commonplace. Cooper v. Aaron (1958) rejected the notion that states could refuse to follow the Brown ruling when several southern states rejected Brown as unconstitutional. The Supreme Court unanimously rejected this idea and held that only federal courts decide issues of constitutionality. Gideon v. Wainwright (1963) established that the Sixth Amendment requires legal counsel for indigent defendants, and Miranda v. Arizona (1966) established that suspects be advised of their legal rights before questioning by police.

The Baptist Press reported on August 6 that Southern Baptist Public Policy Specialist Barrett Duke held “deep concerns” about Justice Sotomayor and “her ability to subordinate her ideological biases to the Constitution’s objective standards”. Does he ask the same thing of conservative judges?

I would refer Mr. Duke and others on the right to listen to what Sen. Lindsey Graham said on the closing day of the judiciary committee hearings for Judge Sotomayor. “…Because I think fundamentally, judge, you’re able after all these years of being a judge to embrace a right that you may not want for yourself. To allow others to do things that are not comfortable to you, but for the group, they’re necessary. That is my hope for you.” Why can’t that be the hope for all America, to allow others to embrace a right that we may not want for ourselves, isn’t that what individual freedom is all about?