It is a great irony that conservatives have been railing about judicial activism for the past forty years, while the Supreme Court…the primary target of their venom…has been relentlessly swinging to the Right, and doing so in a very activist fashion.
Every confirmation hearing for a Supreme Court justice is filled with cries for “strict constructionist” judges who will uphold the Constitution. The implication is that liberal activist judges have been tearing great holes in the fabric of our founding document. The reality is quite the opposite, as Professor Erwin Chemerinsky, Dean of the Law School at the University of California, Irvine shows in his latest book, “The Conservative Assault on the Constitution.”
When most people think about the Supreme Court, they probably visualize a group of elderly legal scholars debating and deciding arcane legal points in a collegial atmosphere, devoid of political bias. As Chemerinsky makes abundantly clear, the reality of the Court is altogether different. For at least the past forty years, the Court has been divided into two distinct factions, liberal and conservative, not only in the legal sense, but very much in the political sense. The politically conservative bias of the current Gang of Four (Roberts, Alito, Thomas and the late Antonin Scalia’s replacement and ideological clone, Robert Gorsuch) is apparent in their nearly monolithic votes on issues relating to conservative ideology.
While professing “strict constructionist” views, they have overturned historical legal precedent on a number of issues. Chemerinsky notes that judicial activism “…seems to be a label people use for the decisions that they don’t like.” Like beauty, judicial activism is in the eye of the beholder.
Chemerinsky goes on to give his own definition: “A court is activist if it overturns the actions of the democratically elected branches of government and if it overrules precedent.”
The remainder of this essay will provide overwhelming evidence of this activism, and the hypocrisy of the Gang of Four in their campaign to limit individual liberties to those specifically enumerated in the Constitution, while they create new rights for corporations, for example, that are mentioned nowhere in that document.
As Chemerinsky affirms, one of the main purposes of the Constitution, as enumerated in the Bill of Rights, is to protect individuals from oppression by a political majority. The system of checks and balances between the executive, legislative and judicial branches of government was designed to prevent what Alexis de Tocqueville called the “Tyranny of the Majority.” More recently, Fareed Zakaria warned in Foreign Affairs magazine of the rise of “illiberal democracy,” in the world, where democratically elected governments routinely ignore basic human rights, even those delineated in their own Constitutions. The founders of our nation, Chemerinsky says, understood this very well. They had great distrust of majority rule in a pure democracy. The governmental system they created is a “constitutional democracy,” where individual freedoms defined in the Constitution are protected by a Supreme Court that is not elected by the populace. The justices are appointed for life, so they should be free from any political pressure. If the Congress or any state legislature passes a law that violates the Constitution, the Court can strike it down. But what happens when the Supreme Court itself is both political and illiberal?
Chemerinsky notes that the Constitution is not an exhaustively detailed enumeration of individual rights. Much interpretation is required. The claim that the Court should be “strict constructionist” is specious because no case that is appealed to the highest level is an open-and-shut matter vis a vis the Constitution. It would have been decided at a lower level if that were the case. Virtually every case that the Supremes decide to review…and they refuse about 99% of those that are referred to them …has valid opposing arguments and requires interpretation, not adherence to some perfectly clear Constitutional or legal principle. Judicial activism results when the Court reverses a lower court decision which is based on prior legal precedent and established interpretations by previous Supreme Courts. Sometimes such activism may be justified, but virtually every candidate for the Supreme Court, when queried on this point in confirmation hearings has insisted that they have respect for legal precedent established by previous Courts, and would exercise great restraint in reversing prior rulings.
So how did the Court decide, in Citizens United vs. Federal Election Commission to overturn longstanding precedent and declare that a corporation has all the rights of a citizen to participate in the political process, and can contribute unlimited sums of money to political campaigns? Nowhere in the Constitution is such a right for corporations even hinted at, and prior decisions have strictly limited the “rights” of a corporation.
In another case, they ruled against a victim of police negligence whose children were murdered by an ex-spouse after she asked for protection and the cops didn’t bother to take any action, saying that the Constitution does not guarantee police competence.
The third example, the Court’s intervention in the 2000 Presidential election, is the most egregious example of activism, and Chemerinsky gives us a front row seat. He was asked to join Gore’s legal team, and was deeply involved with the whole legal process. Anyone who has an interest in that election and the harmful effects of judicial activism should read his book.
The contrasting outcomes in these cases show clearly that the current Court’s decisions are based on political ideology, not any strict constructionist philosophy, and by any reasonable definition are profoundly activist.
Bert Bigelow graduated from the University of Michigan engineering school, and then pursued a career in software design. He has always enjoyed writing, and since retirement, has produced short essays on many subjects. His main interests are in the areas of politics and religion, and the intersection of the two. Many of his writings are posted on his web site, bigelowbert.com. You can contact him at firstname.lastname@example.org.