Too often, social conservatives use the terms “activist judge,” “activist court,” etc., to describe jurists and decisions they simply don’t like. We forget that phrase used to have real meaning. The phrase “activist judge” should only attach to those jurists and decisions that either embrace the use of law as an agent of social change, or break surprisingly with established law.
Properly understood, “judicial activism” is neither liberal nor conservative, nor is it always bad, or at odds with the ideals of the American Constitution. Granted, sometimes it is. Allow me to demonstrate, with this list of the top ten “activist” decisions in Supreme Court history, color-coded for your ease (blue for good, red for bad, purple for problematic).
- Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803): could Marbury, the defining case of American constitutional law, be anything but #1? In Marbury, the Court claimed for itself the power to both interpret the Constitution, and invalidate those acts of Congress at odds with the document. It invented “judicial review,” a power envisioned for the Court by the Founders, but not explicitly granted in the Constitution. You don’t get more “activist” – or more vital to our liberty – than that.
- Brown v. Board of Education, 347 U.S. 483 (1954), and its progeny: in 1953, segregation was the political issue. So when a vacancy opened on the Court that year, just as the Court was considering a segregation case, President Eisenhower made the cowardly-but-prudent decision to appoint a replacement Justice who emphatically would not push the issue! So he picked Earl Warren….Oops. When Warren ascended to the Court, convinced of the unconstitutionality of segregation, he rushed to assemble a unanimous coalition, willing to strike down segregation once and for all. He got it, they handed down the case, and the country flipped out. The Justices received death threats, and the federal government faced organized resistance to the rule of law, both violent and political, from Southern leaders. But the Justices stuck to their guns, handing down case after case supporting desegregation, determined to secure for African Americans that which was rightfully theirs: the equal protection of the laws. It was a brave thing to do. Knowing full well the controversy into which they were stepping, it was an “activist” thing to do. But it was the right thing to do.
- Loving v. Virginia, 388 U.S. 1 (1967): fourteen years after Brown, the Court resolved the next great question of racial equality – the right to marry whomever one chooses, regardless of race – and, once more, risked its legitimacy to resolve a vital societal issue. And, in deciding the case, the Court embraced a super-strong definition of equality. Dare we say it – GASP! – made policy?
- Scott v. Sanford (“Dred Scott”), 60 U.S. (19 How.) 393 (1857): 100 years prior, we had a very different Supreme Court. When a slave sued his “master,” demanding his freedom, Chief Justice Taney’s Supreme Court waded directly into another social controversy, but this time picked the wrong side, with disastrous consequences for enslaved men and women nationwide. And, to top it off, the Court sua sponte (of its own volition) struck down the Missouri Compromise, nearly igniting the Civil War three years early! This case was so wrong, it took a war and three constitutional amendments (XIII-XV) to fix it. Epoch fail.
- Roe v. Wade, 410 U.S. 113 (1973): yes, yes, Rove et al, we agree on something. Roe, while legally right (it’s a natural extension of Griswold), was probably a few years too early. For federal judges, there’s an art to wading into social controversies, even when the law’s on your side. You don’t want to do it too late, but for God’s sake, you don’t want to do it too early. The Justices just miscalculated here because – this is true – they honestly didn’t think it would be controversial.
- Gonzales v. Carhart, 550 U.S. 124 (2007): look – I don’t like partial birth abortion either. But as a Supreme Court Justice, you can’t let the government ban the procedure, less than a decade after you told them they can’t! That’s just bad judging, compounded in this case by a horrifically bad, logically inconsistent, and outright deceptive opinion.
- Lochner v. New York, 198 U.S. 45 (1905): coming in the middle of the Progressive Era, the Lochner decision was the Court’s desperate attempt to use the Fourteenth Amendment’s Due Process Clause to block legitimate, democratically-implemented legislation aimed at protecting workers from truly heinous working conditions. Who knew that the Constitution recognized a due process right to expose your employees to toxins, regardless of congressional enactments to the contrary?
- Bush v. Gore, 531 U.S. 98 (2000): this case was bad. But not why you think. No matter what you think of the result, the Court’s jurisdiction over this case was more than legally suspect, and its equal protection holding was outright wrong. Don’t take my word for it: the Court agrees! Time after time, they’ve declined to cite or acknowledge the principles of Bush v. Gore as good law. This was not law: it was politics. And yet, the decision does at least, positively embrace the Supreme Court’s role as the broker of democracy. Call it a victory for the rule of law, but a defeat for justice.
- D.C. v. Heller, 554 U.S. ___ (2008): I’ve said it once, and I’ll say it again: Heller, in which the Supreme Court “found” an individual right to bear arms, subject to reasonable regulation, is a well-balanced and politically neutral opinion. But it’s also consciously political, in selecting which version of American history to credit, and it goes directly against nearly 200 years of American law, all of which rejected an individual right to bear arms. It’s a great compromise opinion, and an excellent brokering of competing political interests, but it is not an example of judicial modesty.
- Griswold v. Connecticut, 381 U.S. 479 (1965): do you see the word “privacy” in the Constitution, anywhere? Neither do I. But what do the Third, Fourth, and Fifth Amendments all have in common? They acknowledge and protect a privacy that the Founders didn’t imagine could be threatened in ways other than those prohibited by the Third, Fourth, and Fifth Amendments. Griswold is the first case to recognize, and “find” in the “penumbras” of other constitutional freedoms, a strong right to privacy. This conclusion is as unsurprising as it is inoffensive: even Sarah Palin recognizes that the Constitution clearly must protect some right to privacy. But this type of creative thinking, as in, reading structure and ideals in the Constitution, rather than just the words on the page, is exactly what (selectively) outrages the right. It’s judicial activism – and we wouldn’t want it any other way.
The next time you hear the phrase “judicial activism,” ask the speaker to define her terms, and remember your history. Don’t let the right hijack Justice Sotomayor’s confirmation hearings and turn them into a denial of constitutional values. This can be a chance to educate the loyal opposition on how constitutional democracy really works. Don’t squander it.