Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Tuesday, October 04, 2005

More on Judicial Activism

Yesterday, I excoriated the right for the notion that "judicial activism" is the sole province of the left. Today, in the Times Select***, Nicholas Kristof writes incoherently on the topic.

He begins by -- shockingly -- averring that "Republicans are right to complain about judicial activism." Fair enough, as far as it goes, with my previously noted objections to the anemic content of the overused phrase. Starting with the Warren Court's decision in Brown v. Board of Education, Kristof makes the case that in the middle of the last century the left became dependent on the heady brew of favorable Supreme Court decisions and forgot how to mobilize democratic majorities in support of their policy aims, going to the Supreme Court for "a range of victories it could never have managed through the political process: barring school prayer, protecting protesters who used four-letter words, guaranteeing lawyers for criminal defendants, and securing a right to privacy that protected contraception and abortion."

The problem is, in order to buy his critique one must buy that none of these things, in fact, are protected by the Bill of Rights simply because no justices prior to those decision found such protections in the Bill of Rights -- that is, that prior compositions of the Court were more authoritative than later compositions, in virtue of no more than closer proximity in time to the Framers' enterprise. In the same vein, he notes that, "when other avenues were unavailable, the Supreme Court used the 13th Amendment, which simply banned slavery, to bar private discrimination against blacks," a "worthy outcome[] achieved by torturing the constitution." (All emphasis mine.)

Let's unpack this notion, shall we? Section 1 of the Thirteenth Amendment provides: "Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." For starters, "involuntary servitude" is also included in the text of the Amendment, and though it may seem on its face synonymous with slavery it is axiomatic in constitutional and statutory interpretation that courts will avoid interpretations that render any language superfluous. In this context, then, one must understand "involuntary servitude" to pick out something more than "slavery" properly understood. I'm not about to duplicate the investigation required to accomplish this task, the Supreme Court having already done so. Indeed, in the Civil Rights Cases, 109 U.S. 3 (1883), the Court found that in addition to abolishing slavery the Amendment "established universal freedom," and "has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States."

In order for Kristof to be taken at face value, then, we must accept as authoritative his implicit premise: that his interpretation of the Thirteenth Amendment takes precedence over the Court's, based on his high school civics-level articulation of the constitution. Thing is, this begs the question: since Marbury v. Madison, the Court, and the Court only has exercised the power authoritatively and conclusively to interpret the Constitution. Arguments from what the Constitution means, therefore, require a rejection of what the Court has said the Constitution means, and consequently a rejection of the very scheme of government on which this country is founded.

Nevertheless, Kristof labors onward, identifying two problems with "the activist approach."+++

[1.] [T]hese rulings alienated ordinary Americans who just could not see how the Constitution banned school prayers but protected obscenities. Frustration still seethes at liberals who try to impose their values on the heartland, and one consequence has been the rise of the religious right.

[2.] [C]onservatives can play the same game of judicial activism to advance a social agenda. Alas, they already are.

First of all, the lawyer in me insists on pointing out that while vulgar language, which Kristof might intend to connote with the word "obscenities," indeed enjoys fairly broad First Amendment protection, "obscenity" as understood by the Court is precisely what the First Amendment does not protect.

Second of all, the alienation of "ordinary Americans" (about which patently offensive and elitist term, more in a moment), and their consequent potential for rash majoritarian action, is precisely a prerogative the constitution aimed to protect on behalf of foreseeable minorities of viewpoint and belief, and why we must constantly remind ourselves that we live not in a democracy but in the republic that document etched into history.

But relief is here, right? After all, Kristof acknowledges what so few conservatives will: that appeals to judicial activism comprise just as many arrows in conservative quivers as in liberal ones. Indeed, he goes further, acknowledging that while "judicial activism is usually associated with liberals" (due in no small part to unrigorous and myopic commentators such as himself, he neglects to mention), "lately conservatives have been far more likely to strike down laws passed by Congress," an outcome the arch conservative Justice Thomas is the most likely to vote for and liberal justices Ginsburg and Breyer are least likely to vote for among the Rehnquist Court's former nine justices.

Alas, Kristof cares not for this modern trend, which one would think is the most germane seeing as it describes the current condition of the Court rather than its former tendencies. He also doesn't investigate whether finding that Congress acts unconstitutionally can legitimately be called activist, yet another hidden and undefended premise. What if the far right swept to power in the legislature and started passing discriminatory laws one after another? Would it be activist for the Court, honoring its least challenged civil rights rulings, to reject these laws one after another. Perhaps it's not the nature of the Court but the quality of the legislation that has prompted a significant increase in the number of statutes rejected as unconstitutional in recent decades? I'm not taking a position on this, but to the extent Kristof's column does so, he ought to defend it, or at least acknowledge it as an underlying postulate.

He finishes with a quite by Prof. William Galston, who evidently wrote of Democrats that "[w]e must acknowledge that as a party, we have opened ourselves to charges of elitism." Galston goes on to bemoan the want of effective ground-level mobilization of a democratic majority, which surely is a legitimately observed weakness of the left.

But how is it "elitist" to ask Christians to let non-Christians behave in their spheres as they choose, to ask that religion be a private matter of choice rather than a public mandate foisted upon the public by legislative and majoritarian action? And how can Kristof let that last charge of elitism stand, when earlier in his column he implies that the great ill of judicial activism is the "alienation of ordinary Americans" just before going on to note that modern judicial activism, such as it is, actually serves "ordinary Americans" and alienates the supposed "elites."

Another hidden premise: that an "elite" is defined by demography, by politics, income, education, or residency, rather than by a fundamentally anti-pluralistic sense of moral superiority imposed by fiat upon an unwelcoming minority, plurality, or perhaps modest majority (Christians may compose a majority of the nation's population, but they come in many forms, and poll after poll suggests the tenets of the far right simply do not enjoy the support of a popular majority). To me the latter comprises elitism, the insistence that everyone live by one's pre- or proscriptive code, and while there may be some nascent question-begging in my own formulation, I'm not so sure.

In any case, Kristof's column so plainly incorporates an elitism of its own, principally in its underlying agenda that the right's untrained, undisciplined, and results-oriented interpretation of the constitution is somehow more correct than that of the Court charged over two centuries ago with interpreting the document to conclusive effect, that it is guilty of whatever charges it manages to level at the other side, whatever that may be.

Again, we find that "judicial activism" wants for an effective articulation that will imbue it with some useful meaning.

Finally, why is it that the right in touting the virtues of democracy over constitutional incrementalism, and even as it arrogates to itself the suggestion of some overwhelming majority, never acknowledges that the one way it can overthrow so much of the constitutional interpretation it finds odious is through the very democratic process it claims vindicates its positions? The Court decides what the constitution is and says, but it can be overturned by constitutional amendment any time. If the right enjoyed the majority it claims, the amendment process would be an effective outlet. Of course, in real life the far right does not enjoy a sufficient majority, or a majority at all, and consequently the amendment process is not an effective way to impose its moralistic agenda on America in all its pluralistic majesty.

Thank God -- yes God -- for small favors.

*** I'd offer, as I usually do, a non-subscriber link to the piece except, in virtue of the Times becoming the latest organization to contribute to the internet's inexorable accession to the big box for-profit mentality, I can't. Indeed, I gather they've been policing reproduction of their protected content sufficiently well that I might have to take down the excerpts I intend to include in this post.

+++ I'd like to point out that successful litigation pursued by groups one might properly identify as "activists" cannot be taken ipso facto to constitute judicial activism if that phrase is to mean anything at all in constitutional analysis. It would be akin to identifying Brown and the Civil Rights Cases as "black" litigation, and would be equally meaningless.


Anonymous binky said...

"the insistence that everyone live by one's pre- or proscriptive code"

Don't forget its corollary, that those who refuse to live by the code are unworthy to partake in society's goodies, and should be punished. Ah, Calvinism.

11:37 AM  
Anonymous MarkPele said...

As a wise political science professor (a Dr., not a high-school civics teacher) said, to remove religion from the public sphere is not inherently neutral.

There is a religion that rejects other religions - secular humanism. It is a legal religion in the U.S. (it's institutions get tax breaks). Thus, removing religious symbols from the public sphere is, by definition, an establishment of a national secular humanist religion, which is a violation of the first amendment.

The quick and dirty answer is that the establishment clause, AS THE FRAMERS INTENDED, was not a separation of church and state, but was a forbidding of choosing a single Christian denomination above another. Many states at the time of the signing of the Constitution (and the ratification of the Bill of Rights) had clauses establishing particular Christian sects as the state religion, and thus there can be no question that the intention of the Bill of Rights was not to create a government afraid to mention religion of any form. If that were true, the ratifiers could have been sued under the individual states' constitutions.

9:05 PM  

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