Election 2008 Judging Judicial Activism The political flexibility of judicial activism

Author: Murray Dry, Professor of Political Science

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or
old. And that's the criteria by which I'm going to be selecting my judges."

-Senator Barack Obama

"The duties and boundaries of the Constitution are not just a set of
helpful suggestions….
They are not just guidelines to be observed when it's convenient and loosely interpreted when it isn't."

-Senator John McCain

On Sept. 21, the New York Times ran an editorial suggesting that while "Mr. Obama seems likely to pick moderate justices," "Mr. McCain has promised …[to] put only archconservatives on the Supreme Court." For the Times, Obama's "moderate justices" refer to justices empathetic toward minorities and McCain's "archconservatives" refer to justices sympathetic to political authority. Had the Wall Street Journal written a comparable editorial (perhaps it has), it would have characterized Obama as supporting inappropriate judicial intervention into legislative and executive matters and McCain as supporting a strict adherence to the Constitution.

My contribution to the subject is to make two points. First, "activism versus strict construction" does not capture the true division between the candidates, because there is conservative activism as well as liberal activism. Second, neither position as stated is sound.

Let me start by asking "what is judicial activism?" It is not when Justices shrug off their traditional black robes, don protest gear, and walk a picket line. Rather, it is a judicial decision that invalidates an action of Congress or a state legislature (I leave aside the more complex question involving conflicts between the legislative and executive branches). The abortion decisions (Roe and Casey) are examples of judicial activism that political liberals support and political conservatives oppose. The issue is constitutionally difficult, not because abortion is not mentioned in the Constitution, but because even if we grant a generalized right of privacy, another jump is needed for that privacy to encompass the woman's right to terminate an unwanted pregnancy prior to the fetus's viability.

Sometimes liberals oppose activism and conservatives favor it. In 2005, the Supreme Court upheld New London, Conn.'s exercise of the power of eminent domain, which is provided for in the Constitution, in order to provide for a citywide redevelopment plan. The decision was 5-4, with the conservative wing of the Court (Justices O'Connor, Rehnquist, Scalia and Thomas) dissenting. Their objection was that the "taken" property was to be given to a private development company, albeit for public development. Conservative members of Congress opposed the decision and called it improper judicial activism. But, the dissenters were the would-be activists here, just as the liberals were in Roe and Casey.

Whenever the Supreme Court is invited to strike down a legislative act, it should take seriously the significance of disallowing what the constitutional majority has chosen. It's not enough to be for or against activism. Courts engage in an activity that is not simply a reconsideration of the political merits of a controversy. Interpretations of the law must be consistent with one another, and that means following precedent if it is clear, unless there is a good reason to overrule it (and then explaining why the precedent should be overruled). A judicial conclusion that a given statute is not unconstitutional does not necessarily mean that it is wise, only that it is constitutionally permissible for the political process to decide the matter as it has.

There are prudential as well as principled grounds for approaching judicial power with caution. When the Court decided Roe in 1973, it attempted to settle a major moral question, about which reasonable people can and do differ, completely, leaving no place for the people, through their state legislatures, to try to come up with a solution. Most governments in Western Europe came up with resolutions allowing abortion in the first trimester, with legislatures and courts involved. Had our Supreme Court struck down the extreme Texas law, which only allowed an abortion to save the life of the mother, but upheld to Georgia law in the companion case, which provided more extensive grounds for an abortion, the issue would have remained in large part with the state legislatures and it would not be intruding on presidential politics in the way that it has.