"Judicial Activism"

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

Supreme Court Justice Robert Jackson, 1943

 The constitution of the United States was written more than 200 years ago. During those two centuries, society has changed, both socially and technologically, beyond anything the founding fathers could have imagined at the end of the 18th century. Back then, voting rights were only for white, male landowners. The idea that a black woman without money could and should have the same one vote as a rich white man would have seemed positively absurd at the time. Thomas Jefferson owned slaves himself. And yet, two centuries later, the ideas he insipired are universally understood to absolutely and unconditionally prohibit slavery. The idea of liberty and equality for all is so far-reaching, so revolutionary, it has taken many generations to realize its full implications. However, those on the far right of the political spectrum believe that this process should have stopped a long time ago. The idea that atheists, or wiccans, or humanists, or gays and lesbians could and should also be included by those Jeffersonian words of life, liberty and the pursuit of happiness, is anathema to them. Until about fourty years ago, they used to believe, and take for granted, that those rights should only be for white Christians. So did the legislators they helped elect.

Democracy is based on the idea that the majority gets to decide everything. A pure democracy, by definition, has no obligation to respect minority rights, or the rights of the individual. Only majority opinion matters. That's why the founding fathers gave this country the bill of rights, a list of basic liberties that could not be taken away even by a majority, and an independent judiciary to defend those rights. Religious extremists understand that principle quite well when their own liberties are attacked. They understand that their right to exercise their religion does not depend on majority approval. But when the same principle is applied to minorities they don't like, they cry foul. On the website of the Family Research Council, we can read

Across America, many judges, our legal elite, have forgotten some essential principles upon which the United states was founded. This Union was established under a unique system of democratic self-rule because the Founding Fathers trusted the ability of the people to govern themselves. The Preamble to the Constitution reminds us that the branches of our government exist only because "We the People" ordained them to represent and serve us.

I submit that it is the Family Research Council which has forgotten some essential principles upon which the United States was founded. The principle of democratic self-rule is not absolute. It is limited by the constitution. If, on the other hand, the Family Research Council holds the principle of democratic self-government to be paramount, would they be willing to accept the results of a hypothetical state referendum that bans Christians from exercising their religion? I do not believe so. I believe that they would ask the Supreme Court to overturn the referendum, and hope for the "judicial activists" on the court to commit the high crime and misdemeanor of overthrowing the will of the people. And the Supreme Court would be performing its proper constitutional duty in doing so, just like the Supreme Court was performing its proper constitutional duty when it overturned Colorado's notorious amendment 2, which made gays and lesbians second-class citizens under the law. In the amendment 2 case, not the court assumed powers that it did not have under the constitution, but 53% of the voters in Colorado did.

Throughout American history, there has always been a debate on what the proper role of the courts should be. That debate centered around the concepts of judical restraint vs. judical "activism". Liberals believe that judges should uphold the spirit of the constitution, while conservatives want only the original intent to be upheld. But as we have seen above, the doctrine of original intent would seem to demand that blacks, women and people without property do not even have the right to vote. Most conservatives could probably live with that. However, 'original intent' has some unfortunate consequences even for them. If one took that doctrine seriously, the second amendment could only be understood as a right to keep and bear arms of a kind that existed in the 18th century! In concrete terms, that would mean no more semi-automatic weapons, only bayonets and muskets. This example alone should make every conservative think twice before blindly endorsing the principle of original intent.

December 12, 2000 brought all these obscure issues out in the open. On that day, a republican 5-4 majority on the US Supreme Court decided to hand the presidential election to George W. Bush, rendering the most brazenly partisan decision in the court's history. Gone was all sweet pretension of "judicial restraint" and "original intent" - the majority decided that the 14th amendment that was meant to protect the rights of black people did not protect the thousands of Floridians who had been disenfranchised by republican election tampering and outright recount fraud- but that it protected the preordained right of George W. Bush to be president. Gone was all legal reasoning whatsoever - the court majority admitted as much when it emphasized that its decision was unique, one of a kind, not to be used as a precedent.

That one act of supreme conservative judicial activism - brushing aside the results of a presidential election and substituting the loser of the election for the winner - has forever discredited the legal principles conservatives supposedly hold dear. The next time you hear one of them scream "original intent!", remember Bush vs. Gore, the decision where five republican judges decided to make the 14th amendment of the US constitution into the "George W. Bush shall be president" amendment.

[Historical Note: Bush v Gore was not the first time a conservative Supreme Court bastardized the 14th. In 1886, the Supreme Court decided that corporations are natural persons under the 14th, laying the groundwork for today's view of corporations as "corporate citizens" who enjoy the same rights as natural persons. That one, disastrous decision by a reactionary Supreme Court, and the ones that built on it, are essentially the reason why the American democracy has been destroyed, and a plutocracy- an aristocracy of money - been put in its place.]

For the Religious Right, of course, the issues are much simpler. Whenver a court decides against them, that is judicial activism, often used in such variations as judicial tyranny or the imperial judiciary. Armed with those slogans, religious extremists are equipped to handle every and any unpleasant court decision. Any decision they don't like is by definition judical activism, and only serves as ammunition to attack the independence of the judiciary in the future.

Replacing judicial tyranny by tyranny of the majority

In order to minimize the social and legal impact of the current "activist" judiciary, religious extremists have worked a threefold strategy.

a. they try to intimidate sitting judges by threatening them with impeachment.
b. they have their minions in the US Senate block liberal judical nominations, or nominations of women and minority candidates.
c. they pass, or try to pass, constitutional amendments to undo court decisions.

Some even suggest amending the US constitution to impose term limits on judges or to give Congress the power to override court decisions by simple majority vote. However, such radical solutions have little chance of ever becoming a reality. The mainstream of the Religious Right is currently focusing on the only achivable goal, one that promises to radically shift the balance of power in their favour for decades to come, and that is to pack the Supreme Court with radical right justices. Currently, the Religious Right can count on the allegiance of only three out of the nine justices on the court: Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist. However, it is generally expected that there will be several vacancies in the next couple of years, and that George W. Bush will get to appoint two, three or even four justices. Bush has already made it very clear that he considers Antonin Scalia and Clarence Thomas models for future appointments. One can only hope that the feeble Senate democrats will have finally grown a spine when that happens and block those appointments - because otherwise, the extreme right will have won its culture war for the foreseeable future. Further reading: