Judicial Activism and Intellectual Consistency

One of the hottest selling books at the moment is Mark Levin's Men in Black: How the Supreme Court is Destroying America, currently at #8 on the New York Times bestseller list. I've not read this book, but I know the arguments in it. Anyone who has paid attention to conservative rhetoric at the talk radio level of discourse has heard all of the arguments before. Such books are aimed at what one might call the "pedestrian right", as opposed to the intellectual right. No serious conservative scholar would be anything but appalled by the low brow partisan boilerplate that is served up in the Worldnutdaily, or on the Rush Limbaugh show, both of which are enthusiastically pushing this book to their followers, but it plays very well to the rank and file who daily await their marching orders on who to blame next. Dahlia Lithwick has written a review of this book in Slate that captures perfectly the essence of this genre:

Men in Black never gets past the a.m.-radio bile to arrive at cogent analysis. Each of the first three chapters ends with the word "tyranny." Absent any structure or argument, this book could just have been titled Legal Decisions I Really, Really Hate. Levin follows the lead of lazy pundits everywhere who excoriate "activist judges" without precisely defining what constitutes one. He offers four random examples of "activist decisions" which mysteriously include Dred Scott v. Sandford (which was nothing of the sort) and Korematsu v. United States (a decision he trashes for its deference to executive-branch authority in wartime shortly before shredding the current Supreme Court for refusing to uphold the same principle in last summer's enemy-combatant cases). Levin rails for the first half of his book about the ways in which the high court usurps Congress and the president, then rails about the court's failure to strike down their campaign finance law.

And his attempts to draw telling distinctions between similar cases -- any legal scholar's primary task -- are almost laughably off-mark. Take this example: Discussing last summer's Rasul v. Bush case, Levin dismisses Justice Stevens' analysis distinguishing enemy combatants in a 1950 opinion from the enemy combatants at Guantanamo Bay because "the principle is the same" and "the two cases are identical in two significant respects." If judges in fact got to decide cases based solely on the fact that "the principle is the same" -- that is, that each case is kinda analogous -- we really would have a runaway judiciary.

Lithwick nails those who pander to the pedestrian right on the same thing I often nail them on, the fact that their catchphrases - "judicial activism" or "judicial tyranny" - don't have any coherent or consistent meaning. Sometimes they use rhetoric which appears to make those phrases mean "unelected judges overturning the will of the people as expressed through their elected representatives." But as you can see in the example above, they will then complain that the courts didn't overturn the unconstitutional campaign finance law that was passed and signed by many of the same people who yell loudest about those infernal activist judges! (I complain about that as well, but then I don't throw around empty rhetoric about those horrible unelected judges overthrowing the will of the people) Or they will throw their weight behind court challenges to overturn state laws that were passed even by popular referendum, as in the current legal cases attempting to invalidate California's stem cell initiative and medical marijuana referendum, or Oregon's assisted suicide law. When the "will of the people" is against them, as in those cases or in the Schiavo case, they go straight to court to get themselves some of that "activism" that they claim not to like.

Sometimes these catchphrases are used to mean something more subtle, something along the lines of "failing to follow the strict rule of law so that they could reach the result they desire in a case." But here again we can easily see how inconsistently such a definition is applied. In the Terri Schiavo case, for example, that is precisely what the pedestrian right was demanding that Judge Greer do and his insistence on following the letter of the law bizarrely led to him being called an "activist judge." How many times in the last few months did you hear someone argue that Judge Greer should have taken guardianship away from Michael Schiavo and give it to the parents so they could decide to keep her alive. But doing so would have required him inventing new law that was not part of the Florida law. Under Florida law, in a dispute over what a non-responsive patient would want done in a situation where they cannot voice their current wishes, the court is required to take guardianship of the patient themselves and determine if there is clear and convincing evidence of the patient's prior stated wishes. Judge Greer did that. He did not rule that Michael was her guardian and therefore he could pull the plug if he wanted to, he ruled that Terri herself had expressed her wish not to be kept alive in such a circumstance. If he had ignored that, refused to take court guardianship and enforce her own wishes, and then given authority over it to the parents, he would have been doing something the law simply did not allow. He would have been doing exactly what they pretend to complain about in other cases - ignoring the letter of the law to ensure a desired outcome.

Another great example of this is the criticism from pro-life groups concerning our new Attorney General, Alberto Gonzales. Pro-life groups are forever screaming about "activist judges" who use their position inappropriately to serve their ideological goals. Yet when Gonzales was nominated as AG, pro-life groups were up in arms about it because, as a Texas Supreme Court Justice, he failed to use his position to serve his ideological goals. Gonzales is strongly anti-abortion, but when he was on the Texas court there was a case where the court had to decide whether a minor qualified for a judicial bypass around the parental notification requirements under a Texas statute requiring such notification. Under the criteria in that law, the minor clearly did qualify and Gonzales ruled with the majority in granting the judicial bypass. In his decision, he made clear that while he was opposed to abortion, he had to follow the law as written because the validity of the law was not at issue in this case:

While the the ramifications of such a law and the results of the Court's decision here may be personally troubling to me as a parent, it is my obligation as a judge to impartially apply the laws of this state without imposing my moral view on the decisions of the Legislature.

Ironically, another Bush Federal court nominee, Priscilla Owen, dissented in that case and urged that the law be gutted. But the validity of the statute was not at issue in the case. No one was challenging the constitutionality of the law, it was only a dispute over how to apply the statute in a particular case and whether the legal standard given in the law had been met. If judicial activism means anything at all, it has to apply to a judge seeking to overturn a law that had not been challenged in court and even Gonzales hammered his colleague for her "unconscionable act of judicial activism." But here we have pro-life groups, the very groups that so often complain about activist judges, criticizing Gonzales for refusing to be one in this case. For them, their ideological goal of ending abortion trumps the law, which is precisely what they criticize liberal judges for doing.

Serious conservative scholars did point out this inconsistency; the pedestrian right swallowed it whole. Unfortunately, it is the pedestrian right that screams loudly and resembles a constituency, and hence is most likely to influence policy. They are the ones who can be mobilized so effectively by demagogues like James Dobson and Pat Robertson to bury their representatives with emails and faxes. The whole thing is so intellectually dishonest as to be maddening, and not only to the libertarian minded like me but to intellectual conservatives as well. Which is why it's important that we all point out the disingenuousness of this position that can continue to rail against judicial activism in some cases while screaming for more of it in others.