Today concludes week one of confirmation hearings for Supreme Court nominee, Judge Sonia Sotomayor. One salient issue that dominated the hearings was judicial activism. What is the role or expectation of a justice on the Supreme Court? An adherent of precedent? A policy maker? And just how did judicial activism garner such a tarnished reputation?
In 2001, at the annual Law and Cultural Diversity Lecture at the University of California, Berkeley, Judge Sotomayor remarked, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
On Tuesday, Judge Sotomayor was faced with the task of defending her remarks not only about how her gender and ethnicity influenced her decisions, but also about the role of appeals courts in making policy. She explained, "The words that I used, I used agreeing with the sentiment ... which is that both men and women were equally capable of being wise and fair judges ... Justices on the Supreme Court come to different conclusions."
Critics of Judge Sotomayor were quick to affix the label of judicial activist. As defined by Black's Law Dictionary, judicial activism is "a philosophy of judicial decision-making whereby judges allow their persona; views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent."
The notion that judicial activism does not exist is a myth. Legal historians point to Marbury v. Madison, a case decided as far back as 1803, for allowing courts to interpret law and the Constitution. Others cite more recent examples such as the Warren Court, which handed down decisions in two landmark cases - Brown v. Board of Education and Roe v. Wade. In his book, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism, author Thomas Keck outlines the way in which the Rehnquist court enacted its own brand of conservative activist policy making. And just yesterday, I listened and watched as Senator Dianne Feinstein enumerated the myriad of examples of conservative judicial activism.
So what is the role of a justice on the Supreme Court? Yes indeed, he or she must apply the law to the facts at hand. Rest assured, however, he or she views the law through a prism or filter that has been shaped by his or her unique life experiences.
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Cheers!
I firmly agree witht the thrust of your comments. One correction. Roe v. Wade was decided by the Burger Court not the Warren Court. Putting this minor point aside, I would argue (like you) that political activisim is characteristic of both conservatives and moderates on the Court (there are no liberals on the Supreme Court today). Scalia and co. call themselves "originalists" erroneously believing that they know what the Framers intended when they created the American political system and can delineate what the Constitution says.
One of the most dynamic conflicts in American history involved the rise of the first two political parties. Jefferson's Democratic Republcan Party and Hamilton's Federalist Party. And their disagreement involved interpreting and applying the Constitution. Alexander Hamilton, as the first Secretary of the Treasury proposed the creation of a national bank to stabilize the currency and assist the economic development of this infant country. For Hamilton the Constutution must be interpreted liberally (loosely). By contrast, Jefferson argued that there is nothing in the Constitution that allowed for the creation of a bank; therefore, it's a "constitutional violation" to do anything not specified.
My point should be clear. How is it that justices on the Court today can detremine what the Constitution says and what the Framers intended, when the Framers themselves strongly disagreed about our government's role?
The arrogance of Roberts, Scalia, Thomas, and Alito boggles my mind.