Reactionary Activism

Judicial activism, especially by the Supreme Court, has always been more a tactic of the Right than the Left. Reactionary judicial activism reached its highpoint -- or low point depending on one's perspective -- during the Progressive era and the New Deal, when state legislatures and then Congress passed liberal legislation, only to have it struck down by an activist, reactionary Supreme Court. The call for judicial restraint, now heard so often among political conservatives, originated with the Left.

Its primary spokesman was a progressive Boston lawyer named Louis Brandies, who eventually became a justice himself, and in that capacity developed various mechanisms of judicial restraint. He understood that judges have historically been elitist members of the upper classes, not representative of common folk. The legislatures are more representative of the populace at large. Indeed, our system of checks and balances, as originally formulated in the Constitution, saw the conservative judiciary as a check and balance on the popular branches of government. Many of the framers of the Constitution feared what they called "mobocracy," a pejorative euphemism for democracy. Sensible judges would hold the mob in place by their conservative judicial opinions. As Lord Coke once put it, "the known certainty of the law is the safety of all." A pretty conservative point of view!

There was, to be sure, a brief historical window during which liberal activism reached a highpoint. The Warren Court, presided over by the liberal Republican Earl Warren, from the mid 1950's to 60's, rendered a series of decisions granting remedies to disenfranchised litigants who had rights that were being largely ignored. These remedies included desegregation of public schools, reapportionment of gerrymandered legislative districts, and exclusionary rules forbidding the introduction of evidence obtained in violation of the constitution. These rulings were controversial and caused a reaction in which conservatives railed against liberal judicial activists and demanded a return to judicial restraint.

Republican presidential candidates promised to appoint judges who applied existing law, not activists who imposed their own views of what the law should be. There are now seven justices (out of nine) appointed by Republican presidents, and the current Supreme Court is among the most activist in history. The most activist decision, not only in the history of the Supreme Court but probably in the history of any court was, of course, Bush v. Gore in which five Republican justices imposed their own views of who should be president on the entire world. In the process, they distorted the law so badly that they had to announce that their decision would not have precedent value. What their decision did assure, however, was an activist Republican Supreme Court for generations.

In the past term alone, the activist majority overruled key provisions of congressionally mandated campaign-finance reform, dictated to cities how to assign students to public schools, reversed the decisions of federal agencies, overturned jury verdicts against large corporations and overruled its own precedents. So much for judicial restraint!

Adam Cohen of The New York Times, after reviewing the current Court's record of activism, concluded that:

"The other disturbing aspect of the new conservative judicial activism is its dishonesty. The conservative justices claim to support 'judicial modesty,' but reviews of the court's ruling over the last few years show that they have actually voted more often to overturn laws passed by Congress -- the ultimate act of judicial activism -- than has the liberal bloc."

So let's not here any more nonsense about judicial activism from the Right. The real culprit is reactionary judicial activism from the current Republican Court.