Let’s Talk about Judicial Activism - Democratic Underground

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Fri May-29-09 10:27 PM
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Let’s Talk about Judicial Activism

The right wing attack against Judge Sotomayor, based largely on their claims of “judicial activism”, is just the latest example of the absence of any limits to their hypocrisy. Indeed, such attacks constitute the primary mode of action of the hypocrite: Routinely accuse your opponents of committing the sins or crimes that you or your group are infamous for, in the absence of any evidence whatsoever to back up your claims, in the hope that maybe that will make people less likely to suspect you of doing the same. It’s like George Bush ranting and raving about “terrorism”, and then setting off to kill hundreds of thousands of Iraqi civilians.

Judicial activism is the process in which judges base their judicial decisions, not on any coherent legal basis or philosophy, but rather on their own personal preferences. In other words, they simply make up the law as they go along, to suit their own preferences.

As sure as the sun sets in the west, the right wing routinely uses that charge against any important judicial nominee who isn’t sufficiently right wing to suit their preferences.

So I think it’s about time that we seriously talk about judicial activism. Let’s start by talking about the most blatant case of judicial activism in U.S. Supreme Court history – a case so blatant that the five Republican judges who took part in it were careful to say that it should never be used as a precedent in future decisions. The reason for that unprecedented action was left unexplained, but it was obviously taken for the purpose of preventing disadvantaged minority groups from benefiting from their decision:

BUSH V. GORE – THE THEFT OF A PRESIDENTIAL ELECTION

On December 12, 2000, the U.S. Supreme Court, by a 5-4 vote led by Antonin Scalia, decided the outcome of the 2000 Presidential election by ordering that the counting of votes in Florida not be allowed to continue (They had three days earlier put an immediate stop to the vote counting, pending their final decision).

Making abundant use of the hypocrite’s law of opposites, they actually wrote that their intent was to preserve "the fundamental right" to vote, and that "None are more conscious of the vital limits on its judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people.", while disenfranchising more than 50 million people who voted for Al Gore.

Yet, their decision had absolutely NO basis in Constitutional law or logic:

The abuse of the equal protection clause of our 14th Amendment

The 14th Amendment to our Constitution was devised primarily to ensure that our former slaves enjoy a semblance of equal rights under our Constitution. Yet, the Rehnquist Supreme Court had always been uniquely hostile to those rights. David Savage writing in the Los Angeles Times said “Over the last 15 years, the Supreme Court under Chief Justice William H. Rehnquist has made it nearly impossible to win constitutional claims of unequal treatment.” University of Southern California law professor Erwin Chemerinsky wrote: "The Rehnquist Court almost never uses equal protection jurisprudence except in striking down affirmative action programs (designed to help blacks and minorities)”. And former Los Angeles deputy district attorney Vincent Bugliosi wrote that “I can't think of a single instance where Scalia or Thomas has found discrimination against a racial minority, or women, or the aged, or the disabled, to be unconstitutional." Adding to the irony and hypocrisy was the fact that a highly disproportion number of the uncounted ballots in this case were cast by descendents of slaves.

The stated basis for the decision was that different standards for counting ballots were used in different precincts and in different counties. Yet, as should be perfectly obvious to anyone who knows the first thing about our voting system, and as stated by Vincent Bugliosi in “None Dare Call it Treason”:

Varying methods to cast and count votes have been going on in every state of the union for the past two centuries, and the Supreme Court has been as silent as a church mouse on the matter, never even hinting that there might be a right under the equal protection clause that was being violated.

But suddenly after all that time the differing standards for counting votes was such a major problem that it necessitated the stopping of the vote counting in a presidential election, mid-stream. But…. It was only considered a problem for the 60 some thousand ballots that had yet to be counted – the 60 thousand ballots that otherwise would have given Florida’s electoral votes to Al Gore, along with the Presidency. The other several million Florida votes, which gave Bush a miniscule lead in Florida, were allowed to stand. And so were the more than a hundred million votes cast throughout the rest of our country – notwithstanding the differing voting mechanisms used throughout our country.

The arbitrary deadline

December 12th has been set as the deadline for states making a decision in presidential elections, beyond which Congress has the right to question the validity of the vote. Therefore, the only problem with not coming to a decision by December 12th is that Congress would then have the right to question the decision.

But in their December 12th decision the Rehnquist Court treated December 12th as a sacrosanct deadline. And since their decision was rendered at about two hours prior to midnight, it simultaneously made the claim that since there was insufficient time (two hours) to develop new standards, the election was ended as of the time of their decision.

The actual deadline was December 18th. But even that deadline should by no means have been sacrosanct. Bugliosi makes the obvious point:

No less than thousands of times a day in courthouses throughout the country, mandatory ("shall") dates to do this or that (file a brief, a motion, commence a trial, etc.) are waived by the court on the representation of one party alone that he needs more time. If extending the December 12 (or the December 18 date, for that matter) deadline for a few days for the counting of votes to determine who is the rightful winner of a presidential election does not constitute a sufficient cause for a short extension of time, then what in the world does?

I can answer that question with respect to the Rehnquist Court. There should be no doubt that if Gore had been in the lead, they would have given any extension required to meet the “deadline” – except that if Gore had been in the lead they never would have stopped the vote counting in the first place.

The sudden turnaround on “state’s rights”

It has long been a sacred canon of ultraconservative justices like Scalia, Thomas and Rehnquist that “state’s rights” trumps all. The origin of this deference by conservatives to “states rights” was their attempts to prevent federal interference in their violating the Constitutional and other rights of their former slaves and their descendents. This was the argument on which they based their long-standing hostility to civil rights, voting rights, and affirmative action laws.

The Florida Supreme Court had already made their decision, which was to count every ballot (By the way this was an original count, not a re-count of the ballots, in the sense that none of these ballots had previously been hand-counted). So what could explain the sudden and unprecedented decision of these long-time advocates of state’s rights to overturn a decision on a presidential election made by the state of Florida, in accordance with Florida’s constitution? Bugliosi explains what their decision would have been if not for their burning desire to choose the next president of the United States:

So if it weren't for their decision to find a way, any way imaginable, to appoint Bush President, their automatic predilection would have been to stay the hell out of Florida's business.

The unprecedented decision to nullify their own decision for future reference

For all the reasons noted above, there was no Constitutional basis whatsoever for the Bush v. Gore decision. But the justices who supported the decision were concerned that it might set a precedent which made it easier for those for whom the Fourteenth Amendment was written to make use of it. So they ruled that there decision was:

limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

Bugliosi explains the clear meaning of this bizarre and unprecedented action:

In other words, the Court, in effect, was saying its ruling "only applied to those future cases captioned Bush v. Gore. In all other equal protection voting cases, litigants should refer to prior decisions of this court." Of the thousands of potential equal protection voting cases, the Court was only interested in, and eager to grant relief to, one person and one person only, George W. Bush.

SCALIA IS ONE OF THE MOST ACTIVIST AND HYPOCRITICAL USSC JUSTICES IN U.S. HISTORY

In another blatant example of the hypocrite’s law of opposites, Antonin Scalia is typically held up by ultraconservatives as the model of judicial probity and consistency, especially manifested by his “strict constructionism” of our Constitution. As Cass Sunstein explains in “Radicals in Robes”, strict constructionism is a judicial philosophy that says that judges should make their decisions based on a literal interpretation of what the Constitution says, or if that’s not perfectly clear then it should be based on what the writers of the Constitution (or its amendments) had in mind when they wrote it, and if that’s not perfectly clear then it should be based on historical precedence (even if more recent precedence contradicts the earlier precedence).

If one accepts that view, then it can be used (and is used) to justify such views as that the Constitution provides no right to privacy nor right to marriage for same sex couples. As Scalia says about the right to privacy, “There is no right to ‘liberty’ under the Due Process Clause… The Fourteenth Amendment expressly allows states to deprive their citizens of ‘liberty,’ so long as ‘due process of law’ is provided. And with regard to gay marriage, strict constructionism merely says that traditionally it has not been accepted in this country, and therefore it should never be made legal. So then, how does Scalia justify the following:

Affirmative action

Scalia consistently votes to strike down affirmative action programs without consideration of the original understanding of the Equal Protection Clause of the Fourteenth Amendment. Yet, an historical reading of history clearly suggests that affirmative action programs were intended to be legitimate by those who wrote the Fourteenth Amendment. The Fourteenth Amendment was written by Congress shortly after the end of the Civil War. That particular Congress was determined to enact laws that would protect the freed slaves, in the full knowledge that those newly freed slaves were badly in need of protection. Thus was The Freedman’s Bureau created to provide special benefits and assistance for the newly freed slaves.

Freedom of speech

In order to protect the right of the wealthy to have disproportionate influence in elections, Scalia uses the First amendment’s freedom of speech provision by claiming that money is speech. Strict constructionists are supposed to hate that kind of extrapolation. The provision for free speech in the First Amendment was meant mainly to ensure that citizens would be free to criticize their government without fear of punishment. But I guess that if you say enough times that “money is speech” it will become true, right? Here is a touching lament by Scalia for the poor corporations that might lose some of their influence if their money – I mean speech – isn’t protected:

The incremental benefit obtained by muzzling corporate speech is more than offset by loss of the information and persuasion that corporate speech can contain.

Delegation of law making to regulatory agencies

Our Constitution says that Congress will enact laws. Congress has delegated some of that responsibility to the Executive Branch, in particular with its creation of regulatory agencies that are designed to carry out the broad mandates of Congress, but which are delegated by Congress to write regulations in pursuit of Congress’ mandated goals. But Scalia doesn’t like regulatory agencies because they can interfere with the profits of wealthy persons and corporations. So, he says that it is unconstitutional for Congress to delegate these functions, as in this article, where he argues against FDA’s right to regulate the tobacco industry. Yet even the very first Congress gave the Executive Branch the authority to grant military pensions.

Sunstein brings up many other examples in his book, such as the effort of Scalia and his cohorts to grant the President unlimited powers to do as he pleases in the interest of “National Security”, even though many of those functions are given to Congress by our Constitution. And Sunstein’s summary of Scalia and his ilk is given here:

Mr Sunstein shows that fundamentalists have been wildly inconsistent in applying constitutional history, referring to it only when it fits their policy goals. Too often, he says, their interpretation neatly fits only the agenda of the extreme edges of the Republican Party's right wing rather than any reasonable view of history.

Scalia the celebrity justice

Scalia is a lot more than simply an ideological activist judge and hypocrite. In his ideological zeal he has frequently shown contempt for standard principles of judicial ethics. Jonathan Turley explains:

More than any other justice, Scalia has helped forge this new model of the celebrity justice... His apparent inability to restrain himself in public forums has caused no end of problems...

In 1996, he denounced theories of a constitutional right to die when there were two cases on that very question pending before the court. In 2003, he appeared at a "religious freedom rally" sponsored by the Knights of Columbus in Virginia to denounce attacks on the Pledge of Allegiance when a challenge to the pledge was pending before the court. Rather than wait for the oral arguments, Scalia pumped up the audience by declaring that the effort to remove God from the Pledge of Allegiance was "contrary to our whole tradition." On that occasion, Scalia had to recuse himself.

The latest public proclamation from Scalia is even worse. In Switzerland, Scalia responded to a question about the claims of detainees like Salim Ahmed Hamdan by saying "give me a break." Hamdan -- Osama bin Laden's former driver -- is arguing that the federal courts should have jurisdiction over his case, but Scalia dismissed the premise of his claims and emphasized that "if he was captured by my army on a battlefield, that is where he belongs... Scalia's statements are a textbook example of an improper public statement by a jurist. He should clearly withdraw from the case. Not only did he indicate that he had already made up his mind on the subject before Hamdan made a single argument, but he expressed a personal interest that affected his decision...

Jurists are barred from speaking publicly about the merits of pending cases because they are supposed to be impartial and open arguments from all parties. But Scalia has reinforced the view of this court as pre-wired for certain results. The trend is now obvious, but the direction should disturb lawyers and non-lawyers alike...

IN CONCLUSION

I’ll conclude with one more example of blatant judicial activism by a conservative Supreme Court justice. This particular opinion was rendered by Chief Justice Morrison R. Waite in 1886. Fittingly, this example also involves a gross abuse of our Fourteenth Amendment. Before any oral arguments took place in the case of Santa Clara County v. Southern Pacific Railroad Company, and without any explanation whatsoever, Waite simply announced:

The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.

This offhand statement – which cannot possibly constitute an official opinion of the court, which is always preceded by extensive research and debate, finalized with a vote of the nine justices, and accompanied by an extensive explanation – has since been considered the law of the land.

And as such it has greatly increased the power of corporations against individuals by allowing them the protections given to persons under our Constitution, even though corporations are simultaneously showered with various powers that actual persons don’t have and exempted from many of the responsibilities and obligations that actual persons have. The advantages that this has provided to corporations have been enormous, as exemplified by Scalia’s above noted complaint about the muzzling of corporate bribery… I mean speech.

How much more activist can one get than for a Chief Justice of the USSC to change our Constitution with a mere wave of his hand, without subjecting his decision to debate, vote, or explanation – either formal or informal?

Given the blatant judicial activism and hypocrisy of the judges who are the icons of the radical conservative movement in the United States, one should hope that some day before very long, either the leaders of the Democratic Party or our national news media would call them on their hypocrisy. There is no better time to do that then right now, as they attempt to pummel a Democratic nominee for the U.S. Supreme Court, using the hypocrite’s law of opposites to accuse her of judicial activism.