Thursday, April 15, 2010

“Judicial Activism”

Words are political weapons. In the wake of Warren Court decisions about apportionment and sexual morality in the 1960s, “judicial activism” was the conservatives’ weapon of choice. They invented it principally to assault alleged constitutional rights that, by all accounts, were unknown to the people who drafted and ratified the Constitution. “Judicial activism” is the name conservatives give to a deplorable mode of legal interpretation that leaves judges at liberty to use their best judgment to bring coherence and normative integrity to the developing body of constitutional law by fitting the legal precedents together in the most morally defensible way.

More recently, liberals have turned that weapon against conservatives by using it to stigmatize the readiness of conservative judges to nullify democratically enacted affirmative action policies and campaign finance reforms. “Judicial activism” is the name liberals give to conservative judges’ deplorable tendency to nullify duly enacted statutes that promote liberal values under the flimsy pretext that they’re “strictly construing” the Constitution or interpreting its abstract provisions in light of their “original meaning.”

It’s a sign of the rhetorical headway that liberals have recently made that an observer as conservative as George Will is ready to surrender “judicial activism” to the liberal arsenal. In his view, each side's rant about judicial interpretation distracts our attention from the matters of substantive political morality that are really at issue:

“Conservatives spoiling for a fight should watch their language. The recent decision most dismaying to them was Kelo (2005), wherein the court upheld the constitutionality of a city government using its eminent domain power to seize property for the spurious "public use" of transferring it to wealthier interests who will pay higher taxes to the seizing government. Conservatives wish the court had been less deferential to elected local governments. ([Justice John Paul] Stevens later expressed regret for his part in the Kelo ruling.)

“The recent decision most pleasing to conservatives was this year's Citizens United, wherein the court overturned part of the McCain-Feingold campaign finance law. The four liberal justices deplored the conservatives' refusal to defer to Congress' expertise in regulating political speech.

“So conservatives should rethink their rhetoric about ‘judicial activism.’ The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?”
Will seems to think that the nub of the argument over the role of courts in our society is liberal majoritarianism against conservative libertarianism. To see why he’s wrong, note how little explanatory work the majoritarian/libertarian grid does with respect to each side’s attitudes toward Kelo and Citizens United.

Judicial conservatives deplore the majoritarian Kelo decision and celebrate the seemingly anti-majoritarian Citizens United decision. Indeed, conservatives think that they're on the majoritarian side of Citizens United because they uphold the theory they find behind the First Amendment that the more political speech there is, the better the majoritarian decision-making process works.

Judicial liberals deplore what they take to be the anti-majoritarianism of Citizens United but are at best ambivalent about the majoritarianism of Kelo. Justice Stevens’s regrets about Kelo were an expression of that ambivalence; he regretted having to decide the way he did not because he thought that Kelo was incorrectly decided as a matter of law, but because he thought that judicially proper respect for legal precedent compelled him to a majoritarian result that made him morally uncomfortable.

Each side’s theory of legal interpretation does some real explanatory work. Conservatives hate Kelo and love Citizens United because, in their view, the former decision flies in the face of clear constitutional language contemplating that private property may only be taken for “public use” and the latter decision upholds the plain meaning of the First Amendment language that “Congress shall make no law . . . abridging the freedom of speech.” The disruption caused by overturning legal precedents and acts of Congress, in their view, is a price worth paying to uphold the original meaning of the Constitution in these crucial respects. Yes, conservatives are also sticklers for property rights and generally supporters of corporate interests on other grounds.  But that doesn't show that their originalism is merely pretextual.

Liberals regard Citizens United as a giant backwards step because they think the conservative majority had gone improperly out of its way to upend a developing body of campaign finance law that has made our elections fairer in the wake of Watergate. And Kelo made liberals uneasy because it was a case where judicially appropriate respect for legal precedents in eminent domain law forced them into the morally discomfiting position of affirming a local government’s authority to take property away from people of modest means and give it to wealthy real estate developers. Their ambivalence was a sure sign that their theory of legal interpretation isn't just camouflage for a partisan agenda.

I don’t need to be reminded that there’s a strong correlation between federal judges' legal philosophy and whether they were appointed by a Republican or Democratic president. But the argument between liberals and conservatives about the role of the courts in our society is about something real. We do ourselves, and society, some good by having it.

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