Every Judge Is an "Activist Judge"

Senator Jeff Sessions wasted no time today at the top of Sonia Sotomayor's confirmation hearing. The New York Times live-blog reports that shortly into his speech, he said that the confirmation hearing marks a "fork in the road." Sessions is worried by President Obama's decision to include empathy as a qualification for the Supreme Court. Remember, "empathy" is that bad thing we don't want in our judges.

"Like the American people I have watched this process for a number of years, and I fear this empathy standards is another step down the road to a liberal activist, results-oriented and relativistic world where -- laws lose their fixed meaning, unelected judges set policy; Americans are seen as members of separate groups rather than simply Americans, and where the constitutional limits on government power are ignored when politicians want to buy out private companies... Call it empathy, call it prejudice, but whatever it is, it is not law. In truth, it is more akin to politics. And politics has no place in the courtroom."

But what Sessions fails to acknowledge is that politics is always in the courtroom, and every justice has their own set of ideologies, biases, and prejudices. Rolling out the fossilized attack of "liberal activism" may be part of more political grandstanding. However, this line of thinking is not only antiquated, but also disingenuous. Two of the biggest partisan hacks on the court, Clarence Thomas and Antonin Scalia (both Republicans) are wildly ideologically biased, and yet they are never labeled as "activist judges."

Scalia could be called a gun activist, since he is a gun owner, and went beyond defending the Second Amendment in his ruling during District of Columbia v Heller. He said self defense is a "central" constitutional right that requires the ownership of guns (specifically handguns) be permitted so that it can be fully exercised. Crowbarring "handguns" into the definition of "right to bear arms" might have opened up Scalia to accusations of being a "right-wing activist," but luckily, he avoided such inconveniences.

Clarence Thomas, Scalia's younger, crazier cousin, is the definition of an activist judge. Check out his dissent in the voting rights case Northwest Austin Municipal Utility District No. 1 v. Holder. Thomas was the only one of the nine justices who wanted to throw out Section 5 of the 1965 Voting Rights Act as an unconstitutional intrusion on states' rights.

The Voting Rights Act (VRA), originally enacted into law in 1965, establishes comprehensive safeguards against discrimination in voting based on race, color, national origin or language status. One of the act's provision (Section 5) requires that "covered" jurisdictions submit any changes in election practices for "preclearance" to either the attorney general or a three judge panel of the federal district court in Washington, D.C.. Northwest Austin Municipal Utility District No. 1 v. Holder involved a wealthy Texan district arguing that it should be exempt from the jurisdiction provision of VRA on the grounds that the district isn't racially diverse (the combined African-American and Latino population of the district is 7 percent,) and the district is too small for Section 5 to apply to it, and the burden of its application is "too great."

The Department of Justice and the NAACP defended the constitutionality of Section 5 by stressing the ongoing need for federal involvement in ensuring that the Fifteenth Amendment, which bars discrimination based on race in voting, is protected.

The Supreme Court basically avoided making a decision on this case, but Thomas was the only judge to propose throwing out Section 5. Chief Justice John Roberts wrote the court's opinion that avoided a decision on Section 5's constitutionality. Some legal analysts accused Roberts of rewriting the law, which might have been seen as an activist move, but Roberts is a Republican, who as we all know, are incapable of activism.

Northwest Austin Municipal Utility District No. 1 v. Holder was an extremely important case because Republicans continue to actively work to suppress minority voting by introducing legislation like PCB-EDCA 09-08 (AKA House Bill 7149,) a Republican-sponsored measure to suppress the minority vote in Florida. By adding impediments to voter registration, early voting, and election day voting, Republicans were clearly targeting minority voters (historically Democrat votes,) which illustrates why the need for VRA and Section 5 are still essential. PCB-EDCA 09-08 is only one example of many such cases.

Unfortunately, Activist Justice Clarence Thomas doesn't see it that way: "Enforcement efforts before the enactment of Section 5 had rendered the right to vote illusory for blacks in the Jim Crow South," Thomas wrote. "Despite the Civil War's bloody purchase of the 15th Amendment, the reality remained far from the promise." Thomas argued that because seven states, which are covered by Section 5, have black voter registration that exceeds the national average, this somehow proves that the law no longer meets the threshold for being a constitutional exercise of congressional power over the states.

Nor does Thomas think states should be burdened by "second-generation barriers," racial polarization or "discrete and isolated incidents of interference with the right to vote." Such an opinion appears to be firmly rooted in Thomas's own biases and ideologies, which makes him the very definition of an "activist" for his own beliefs.

So please, put the partisan hackery of "activist judges" to rest (forever.) All judges are activists, even when they claim to be "strict Constitutionalists" like Scalia. Even a justice that claims to strictly adhere to the word of the original law must occasionally creatively interpret the arcane language of the Constitution as Scalia did in District of Columbia v Heller. Whenever interpretation occurs during rulings, justices rely on their past experiences, ideologies, biases, prejudices, and yes -- the most dreaded of human qualities -- empathy.

Cross-posted from Allison Kilkenny's blog. Also available on Facebook and Twitter.

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Comments

[DanGavigan]

The way conservatives, via their favorite talking heads, are portraying Ricci v. DeStefano, says it all about their legitimacy. They somehow morphed it into a straight case of reverse discrimination, making, you guessed it, EMPATHY, the ultimate arbiter of the case in their minds.

The firefighters were the victims, despite the fact no one was promoted over them. Justice Sotomayor was part of a unanimous, 3-person panel that upheld New Haven's judgment in reworking the promotion exam, only to be struck down by SCOTUS by a vote of, wait for it.... 5-4. Bill O'Reilly, for one, after a carefully crafted 'endorsement' of Sotomayor, took to the tactic of portraying her as a potential activist-in-waiting to Justice Ginsberg (who was an ACLU attorney, you know!)

What BOR, and surely others, failed to report, were the facts surrounding the case. As Ginsberg outlined in her dissent, The New Haven City Board, after due diligence and multiple hearings, uncovering evidence of significant irregularities in the exam's administration, made a judgment call to throw out the test. After all, it might give a brave firefighter grounds to sue under Title VII. Settled law can be such a nuisance.

In a country where EVERYONE has their opinion, who should expect judges to act like some sort of cold, bloodless robots?

[S1m0n]

The right wing line on Ricci is a complaint that by following the prevailing precedent, Sotomayor wasn't being activist enough.

[TheJibreelaMonsters]

"As a Judge, I don't make Law" yea and I'm packing heat like Lex Steel that would make John Holmes blush. This is all moot becuase our GOP is spineless becuase they fear the M$N backlash however this same M$N will willingly go after (fill in minatory) ___________ Conservatives with the zest and zeal of a Smithsonian Firefighter

[nk007]

Poor Justice Thomas! He very clearly represents proof of the validity of the "Stockholm Syndrome." Justice Thomas is the kind of "Affirmative Action beneficially" that rabid right wing Republicans love. His dictum: "it is o.k. to benefit from Affirmative action, despite your unimpressive achievements, so long as you wholeheartedly endorse the Republican war on the advancement of people of color; even for those who supremely qualified but happen to threaten the right wing ideology." His corollary: "white males (despite their continued dominance inmost spheres of U.S. society) are more discriminated against than women and people of color. Interestingly, this is the position that is repeatedly articulated by Pat Buchanan, one of the leading champion of racial equality in our time.

[brooklyncitizen]

"And politics has no place in the courtroom.­"

Except when it comes to handpicking a US President.­...it was the Supreme's court coronation of Bush.

[guilatty]

Finally someone is pointing out publicly that Justice Scalia is every bit an activist judge who, like many conservatives, preaches one thing but does another. The Heller decision has completely destroyed any claim he has to being a strict constructionist. He had the opportunity to advance his politics and he took it. If there was only a way for liberal activist judges to stop being so defensive about it and just act like Justice Scalia, except with better ideas.

[faith]

Read the opinions of Justice Cardozo, White, O'Connor before you declare "every judge is an activist judge" . There is history of "some jurists" opinions written and analyzed with an eye toward changing the interpretation of Constitutional issues. But, it is not correct to say all judges do so. Justice Cardozo wrote many great opinions, which were logical and enlightening (think foreseeability issues in tort actions). Although, I personally did not agree with all his decisions, many were brilliant.

[Steward Clinton]

Thank you! I did not even read the article (yet) but was blown away by the fact that I thought the very same exact words "every judge is an activist judge" when I read the criticism accusing Judge Sotomayor of being that. It was like a 'wow' confirmation of the obvious. Thanks.