Let me start by saying that there have definitely been some “bad” court rulings, both recently and throughout history. But there are two points I’d like to make about “activist judges,” both of which are things people seem to overlook and that drive me crazy.
“Activist judges” has become a lot like “special interest groups,” in that it’s a term that one side uses to demonize the actions of the other. The Democrats speak out against activist judges ‘electing’ Bush, and Republicans speak out against activist judges allowing gay marriage and abortion. What the two sides call “activist judges,” then, isn’t at all similar–an activist judge is someone who makes a decision that’s unpopular with one political party.
Today’s Nashua Telegraph carries a letter to the editor from someone pointing out the major problem of judges “ignoring the will of the voters.” It’s very well-written, but has one glaring problem: that’s how the system is designed to work. The Founding Fathers1 knew the problems of legislators running amock, and the “will of the voters” sometimes being misguided. (See tyranny of the majority, for example.) Throughout history, “the will of the voters” has been to deny women the right to vote, to enslave blacks, to deny blacks the right to vote, and many other things that, in retrospect, were just really ill-conceived ideas. (Unfortunately, it often seems that it’s legislators, not courts, that pave the way for progress, but I digress.) So the judicial branch is supposed to ignore the will of the voters, and instead focus on the founding principles of our nation. That’s why judges are usually appointed for life: to insulate them from political influence. Even if we end up with a radical2 liberal or conservative President, they won’t be able to made too big of a difference to the Supreme Court. That’s deliberately in place.
Yes, the courts have made some bad rulings. Sometimes I think they’ve trampled the Constitution, and I do believe that a handful of judges over time have allowed their personal and political convictions to get in the way of justice. I’m not sure I’d call them “activist judges,” though: I’m not sure I’d call them “judges” at all.
But there’s a lot of ambiguity in the law. Sometimes the law even contradicts itself. There really isn’t a lot of black-and-white in the courtroom: even when the law is clear, there are probably different laws that could apply, too. Thus a 5-4 Supreme Court ruling doesn’t necessarily mean that 4 (or 5) judges were “wrong,” so much as that there are two strong, conflicting arguments, and the judges applied different reasoning.
I’m willing to bet that, throughout history, people have criticized rulings. Dred Scott? Brown v. Board of Education? Scopes v. State [of Kansas]? But all of a sudden, we’re applying the label “activist judges” and implying that judges are disregarding the law and just going with their own personal beliefs. Surely, it happens. But surely, it doesn’t happen nearly as often as people seem to complain about. I’m not all that convinced that there’s a pandemic of “activist judges” all of a sudden, but that a lot of controversial issues have come to the surface in the past decade. What’s new, as far as I can see, is that people are rushing to blame the judges for their personal rulings. It’s sort of like an umpire at Fenway ruling that the Yankees tagged a Sox runner a fraction of a second before he reached the base: it’s going to be a very unpopular, very controversial ruling, and probably attract lots of booing. People are going to claim that the umpire was bought off, or biased, or just blind. But most times, that’s not really the case, and we’re just taking our disappointment out on the person making the call, even though the call was right.
So I’m not disputing that “activist judges” exist, perverting justice by imposing their own beliefs instead of the facts. I just think they’re a lot rarer than people claim. When dealing with controversial issues and applying very unclear laws to them, there are going to be rulings where the facts were interpreted differently than you like. So to me, “activist judges” are almost a sort of conspiracy theory: as if a cadre of liberal or conservative (depending on who’s making the accusations) judges have secretly infiltrated our courts and flagrantly disregarded all the facts, just going with their personal opinions. And I really don’t buy that there’s a judicial conspiracy on either side of the aisle.
But whether you believe that there’s a judicial conspiracy underway or not, you should at least refrain from complaining about judges that “disregard the will of the voters.” That just means that the system is working: they should be disregarding popular opinion, and only looking to apply existing law.
[1] This usually isn’t a proper noun, but I think it ought to be.
[2] And I really mean “radical.” Both leading candidates have been called “radical,” but I mean it in a more literal sense: a “radical conservative” might espouse Fascism, and a “radical liberal” might think that Socialism was too conservative of a system. (Okay, and Bush and McCain have been called Fascist, and Obama et al. have been called Socialist, but I again mean it literally, not as an exaggerated way to demean someone.)