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.