Friday, November 04, 2005

Shades of judicial activism

One of the most amusing things to me about recent and upcoming Supreme Court confirmation hearings is that this pending epic battle - basically over abortion - would be nearly moot but for judicial activism.

Most republicans that I'm aware of consider judicial activism to be a Bad Thing. Many liberals disagree; the constitution should be a living, breathing document (they say), and expanding the reach of government via the judiciary is natural, and desirable. I think these stances are best summed up today by George W Bush on the right and Joe Biden on the left. Bush has been quite consistent in saying he will nominate only people who will interpret the law rather than legislate from the bench. In the Roberts hearings, Biden's opening statement laid out the case for the opposing viewpoint.

Quickly, why is judicial activism Bad? Because laws should be written by elected bodies. Because the constitution is a Great document which laid the plans for a Great federalist nation, and activism destroys both. Because activism allows a handful of unelected people to create whatever law they see fit. In my view, no amount of societal good can excuse this violation of our constitution, our democracy, and ultimately our liberty. This principle is important.

The current Supreme Court situation is ripe with irony: many forces on the right are hoping for nothing less than a judicial reversal of Roe v Wade, and they will be furious with any lesser outcome. Opposition to Roe is practically a litmus test in many branches of the right. Doesn't this make the right pro-judicial activism? On the other hand, all the left wants under the present circumstances is a preservation of the status quo. Don't threaten our omnireaching commerce clause and the laws we've built upon it, don't threaten our Roe. The left could, if it wanted, argue that they are in fact opposed to judicial activism at this point in history. But they don't - they still support it, even though it is precisely judicial activism which may directly overturn the settled case law that they cherish. Delicious irony, across the spectrum.

On the right, this creates an uncomfortable situation. Given that case law is as much law as legislative law, how could our non-activist judges ever overturn Roe?* If they do, haven't we violated the very principles that are so dear and precious, above? This is difficult to reconcile.

I suggest that there is a potential middle ground to be found someplace in the gap between making law from the bench, and not. Specifically, I think that using the bench to overturn prior abuses of judicial power deserves special status. I say this not so much to give an out to the anti-Roe forces, but more in the hopes that we can ever repair the damage done to our constitution and our federalism. This isnt as clear cut as I would like - past decisions are law, and overturning law by judicial fiat is fundamentally activist - but I suggest a special category of law should be perhaps exempt from our principled ban on activism.

I propose that we call this narrow application of judicial activism "activist repair". Activist repair is strictly limited to overturning past decisions which found new unwritten rights in the constitution, or found new ways to expand the power of the federal government based on ever stretchier leaps of faith from amendment or article to end result. I am willing to accept in principle that this narrow band of activism is ok. More than just ok, desirable. Rather than eroding our democracy, our constitution and our freedoms, repair activism has the potential to clean away the damage done by years of activist courts. So long as we define this concept narrowly, we will be fine with our principles, above. Really, this is nothing more than anti-activism activism. On the day that we've rolled back all activist decisions, there will be nothing left to apply repair activism to, and it too will go away. Hopefully forever.


*I am pro choice but I think Roe is a horrible decision. I would see it sacrificed in the name of states rights and limited federal government. As I said above, no societal good can justify legislating from the bench.


Blogger WalnutHill said...

The problem of judicial activism may have been inevitable from the start. This is due to the proclivity for elected legislative or executive officials to punt charged matters that nevertheless require attention, and to a laudable humility that the U.S. Constitution displays most prominently in the 9th and 10th amendments.

Amendment IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

On their own, they are wonderful and important statements. It would be presumptuous for any government or any constitution to assume that it is the source of all rights and both the source and the holder of all powers, especially in a federation of sovereign states. In this regard and as an aside, the 9th and 10th amendments perform an important and salutary function that is in danger of going missing from the constitutional development of the European Union.

Taken together, these amendments are avoid being in and of themselves a punt. The federal government does not presume to name, assign, and enumerate all rights of the people. Yet, those rights may necessitate prosecution or civil adjudication when they are abridged or when they conflict with the exercise of other rights. How to reconcile those constitutional humility with the exigencies of protecting unenumerated rights? The 10th amendment makes it clear; the protection of unenumerated rights is obviously one of the powers "reserved to the States respectively, or to the people." The people have the power to exercise their rights, make private contractual agreements, mediate their own conflicts, and so forth. In the event that those tools should fail, the power to regulate or adjudicate behavior involving unenumerated rights is left to the states.

These amendments, however, are also the springboard upon which the states (and Congress, as Congress uses the 'persuasive' power of the federal purse to motivate states into certain statutory uniformities) punt the charged issues over to the courts.

This is not to say that all judicial activism is caused by legislative punting. Some judicial activism, including most prominently Roe v. Wade, involves a judicial override of legislation duly passed by states.

Furthermore, if the unenumerated rights are indeed some of our most precious rights -- the right to bedroom privacy, the right to procreate, the right to raise our offspring, and so on -- then adjudicating the abridgement of those rights is necessarily not just a matter of correct process but also of correct result. One does not remedy the abridgement of parental rights by awarding cash to the aggrieved party, but rather by affirming injunctively the parental rights in question.

The world is more complex still than even this foundational analysis. There are dimensions of pro-state versus pro-individual, politically left versus politically right, principle-driven decisions versus policy-driven decisions, and more. None of those dimensions collapse neatly into congruence with each other, and there is ample room for even informed observers to hold inconsistent positions about judicial activism.

I am contemplating a piece that develops this matter in more depth than this foundational discussion.

1:10 PM  
Blogger practical libertarian said...

wow, fantastic comments!

1:57 PM  

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