On Judicial Activism

Many true red conservatives are irate about the possibility of Sonia Sotomayor becoming the next Supreme Court justice. That seems only fair; many true blue liberals reacted similarly when John Roberts and Samuel Alito were nominated. One could only be so pleased if such reactions were the most terrible occurrences in American constitutional law today.

The issue of whether the Constitution is a live or a…dead document evokes even greater passion. Justice Scalia would likely put the question to rest by pointing out that there is no better proof of the Constitution’s deadness than the fact that it cannot breathe…or move. Scalia’s observation notwithstanding, conservatives complain that a live constitution leads to Judicial Activism—a practice whereby judges legislate from the bench. Conservatives abhor the practice (when liberals engage in it) because it bypasses the democratic process that allows citizens to vote for those officials who are responsible for regulating human behavior. They submit to the proposition that the Constitution ought to be interpreted literally—what you read is what you get–insisting that any intent to construe it loosely ought to first undergo a constitutional amendment in order to safeguard the democratic process.

Liberals, on the other hand, ignore their counterpart accusations claiming they are “political,” (as if not all things in politics are political). Liberals are also less drastic. They take the view that the Constitution had not been—and was not meant to be—chiseled in stone.

This does not mean that justices should lightly disregard such an almost politically perfect document. They would point out to the realization that what emerged from the Constitutional Convention was not only a legal document. The Constitution was, above all, a political compromise that took place among white men representing various ideological persuasions and interests, both personal and communal. These views and interests, along with the issues they confronted, were conditioned by political, social, economic, technological, and cultural realities of the time. As those realities change—all societies evolve–both future interpreters of the Constitution and the issues confronting them would necessarily change as well, requiring a different understanding—this time by men and women, blacks and whites—who in turn are conditioned, too, by new experiences and new challenges. It is these two elements, change and conditioning, both unavoidable, and the latter a consequence of the former, that make the Constitution a more live than dead document.

Does that mean that the Constitution should be interpreted in a loose rather than a strict manner? The problem is that while judicial activism is neither inherently forbidden nor advocated by the Constitution, routinely engaging in it might easily erode constitutional credibility. Moreover, we all recognize that taking liberties from the bench is not a political indulgence that only conservative or liberal justices incur into; both sides seem to indulge equally.

There is, however, a much more constitutionally harmful practice than judicial activism. I am referring to the Supreme Court becoming an ideological instrument in the hands both of politicians and of the justices themselves. History has shown that constitutional decision-making allows room for justices to come together to justify almost any ideological decision while basing it on the document itself. It is here where justices have to show the most restraint, and in many cases, unfortunately, they do not. While it might be the result of the ideological polarization we seem to be going through as a nation, for purists who believe in constitutional objectivity, the ideological usage of the high court can only be sadly felt, and accepted, until the justices themselves decide to restore a much higher respect for the institution they serve.

Little is read or heard in the media or in the Congress about the significance of those persisting 5-4 decisions emanating from the high court. Quite often, these decisions regarding the most controversial social and political issues of our times, among them, abortion, gay rights, gun control, affirmative action, religion, freedom of speech, and the like,  are characterized by what seems to be a preordained ideological divide. For those of us who favor a more ideologically detached and rational approach to constitutional interpretation such a practice leaves a long and lasting bitter taste.

In a political fantasy world, politics ought to be left to the executive and the legislative branches, where electors make their will known, while the judiciary remains a much-needed font of ideologically insulated wisdom.

As it is, except for those who thrive on partisanship—perhaps a sizable majority of the population—5-4 ideologically-driven decisions seem to lack constitutional credibility. These decisions reveal the existence of two distinctive constitutional microscopes. While all facts appear to be the same before the individual eyes of the justices, when examined closely something seems to distort or affect the way the information is viewed. Given the high level of constitutional knowledge each justice possesses, something then must account for the fact that decisions on these controversial cases are being pronounced along ideological lines, revealing in the process that not everyone is equal before the law. Can such ideologically-driven decisions be simply a matter of coincidence or do they reveal an inability—or unwillingness–on the part of the justices to overcome their personal political values or ideological bent when deciding these cases?

Justices do act like baseball umpires–as Chief Justice Roberts explained to us during his nomination–calling balls and strikes the way they see them. Nonetheless, as we all know, there can be plenty of baseball activism behind the plate, as umpires are known to have different strike zones that may even vary in game-to-game situations. Same ball and home plate dimensions, same rules, and very different outcomes. What Chief Justice Roberts did not discuss—and no senator asked him—was the practice of judicial umpires grouping together along ideological orientations.

Perhaps this is what we want, what we fight for during the electoral processes. It is interesting that a group of conservatives argued on behalf of a real debate in the Senate over the Sotomayor nomination, so that differences between Republicans and Democrats be shown, suggesting that there is a Republican and a Democratic version of the Constitution.

If left up to me I would much prefer to see at least a combination of conservative and liberal justices in these 5-4 decisions; or better yet, predominant majorities—6-3 or 7-2 decisions–that include justices from both ideological persuasions. That would most certainly restore my feeble credibility in those who are called to interpret the law of the land.

On the other hand, if these ideologically-driven decisions are but an inevitable sign of the times we live in, then diversity in the court is a reasonable alternative. While not speaking highly of the justices, respect for the law within a framework of multiple views and experiences requires an ideologically-balanced court. Sonia Sotomayor should provide such balance.

Some conservatives are concerned that Judge Sotomayor might be a racist who favors individuals with her ethnic background and other socio-economic minorities. Empirical research of this charge would go a long way toward ascertaining its validity. One would only need to go through the hundreds of decisions that Sotomayor has been involved in, establish percentages of the total number and ethnic and racial background of those she has decided for and against, and publish them comparatively with those of  her colleagues.

Should Sotomayor be found to be ideologically-oriented but not a racist, society stands to gain politically with the new addition to the court. At the very least, the democratic process would be safeguarded, for, if to the victor belongs the spoils, a judicial nomination by a nationally elected president reflects the will of the majority. Moreover, a more or less balanced court would seem better able at protecting the rights, interests, and values of the minority as well.

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