A new strategy is emerging among activists who, pretending to be non-activists, hope to frustrate President Bush's pledge to select judges who interpret the law rather than create it. The strategy aims to undercut conservative criticism of "activist judges" by redefining the phrase to make conservatives the worst offenders.
The plan was revealed in a New York Times op-ed piece (
"So Who Are the Activists?") cowritten by Yale Law School Paul Gewritz and recent Yale Law grad Chad Golder. Both men are motivated by a desire to be fair. We know this because they tell us ... a lot. They say they dislike how both sides tend to use the phrase "activist" to refer to judicial decisions with which they disagree. In hopes of busting this deplorable partisan logjam, the writers have identified a "reasonably objective and quantifiable measure of a judge's activism
."
Here's the question Gewirtz and Golder asked of justice's voting records: "How often has each justice voted to strike down a law passed by Congress." This is a good test, they say, because it's hard to get more "activist" than to dismiss the handiwork of Congress with a brusque "No way." Turns out that the justices most inclined to do so are, in this order: Thomas, Kennedy, Scalia, Rennquist. Least likely to strike down legislation: Breyer, Ginsburg, Stevens. Being fair, the writers make clear that there's nothing
necessarily wrong with striking down laws passed by Congress — sometimes those laws just happen to be unconstitutional.
It's at this point that the writers' being above the fray begins to look a lot like advocacy, not to be confused with activism, which they oppose, which they have told us so at the very beginning, and with a degree of insistence that makes it hard not to wonder, "What are these guys trying to conceal?" A closer look at their definitions is revealing.
For instance: What is at the very heart of a judge striking down a piece of legislation? Nothing less than a decision to "actually intervene in the democratic work of Congress." Interestingly, the writers don't simply say "intervene." Nope: judges who overturn legislation
actually intervene — how dare they! And not just in the work of Congress, but in its
democratic work. The clear implication is that the work of the non-congressional branches isn't democratic, an idea that surpasses ordinary nonsense. Elected presidents make judicial nominations that are acted on by senators who are likewise elected. Sitting Supreme Court justices make decisions based on majority rule, another characteristic of democracy.
So here's the central (if covert) bias of the men from New Haven:
Congressional legislation is a good thing. And what's the characteristic focus of congressional legislation? To advance federal purview over an area of private life which previously was not subject to federal purview. Surprise: turns out the most liberal members of the court don't strike down congressional legislation as often as conservative members do!
Steven Breyer, who once staffed for Sen. Ted Kennedy, apparently rather likes an in-charge federal government. Well, bowl me over.
Gewirtz and Golder clearly need a broader way to think about activism, beginning with a necessary distinction between activism of the Breyer-Stevens kind, which seeks to expand the power of government, and activism of the Scalia-Thomas kind, which attempts to defend the Constitution from those who seek unbridled power. This is a distinction that makes a difference, and the fact that it doesn't enter into the writers' deliberations leads one to suspect their less nuanced definition of activism serves a larger goal — perhaps to take discussion of "activism" off the political table altogether in the months to come.
Here's the broader (if unstated) conclusion the writers want readers to entertain: "Judicial activism? No big whoop. Guess what: conservatives are worst of all. But, hey: both liberal and judicial court members just insert their own disguised political thinking, anyhow. So why not back those nominees whose political views are closest to your own, and why not oppose nominees whose political views most differ from yours?"
What's most false about this reasoning is that judicial activism and limited government aren't intrinsically at odds. A principled originalist ("What would the Framers do?") doesn't hesitate to overturn past decisions that represent nothing more than naked legislating from the bench on subjects that have no constitutional grounding. This isn't to say an originalist will overturn precedent lightly or with relish; to the contrary, he or she despairs at the damage done by past judicial decisions that reflect so little respect for original intent.
Here's the key point: an originalist/constructivist knows it is never too late to get back to the actual (rather than ideologically imposed) meanings of the magnificent document framed in 1787. Roe v. Wade? Originalists say abortion should never have been removed from the political realm. The word "privacy" never appears in the Constitution. By sending abortion back to the states, federalists (even pro-choice ones) are confident the people can decide.
But isn't that "activism"? Yes, of a sort — and altogether different from the activism which beholds a "living, breathing Constitution" that, um, reads the findings of foreign courts to meet, er, evolving needs. Actually, the Founders (parochial though they were then; dead, white, male though they be now) provided nicely for evolving needs. They provided a process by which the Constitution can be
amended. In this sense, process and principle coincide. And here's the really interesting thing. Deciding whether or not to amend the Constitution is the job of legislators. You know: the real ones, who get
elected.
Kudos to the boys at Yale for coming up with such a clever way to say what Sen. Harry Reid said in his radio speech today: Bush should pick a nominee in the Earl Warren mold. The chances of that happening are currently about as good as Jerry Springer getting tapped for the gig. Meanwhile, check out an excellent
article in the latest issue of
Reason magazine, laying out "the libertarian case for judicial activism."
