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The Judicial Activism Fallacy

June 2, 2009

With Judge Sonia Sotomayor’s confirmation hearings approaching, the whirlwind of commentary, questions and allegations is beginning to heat up. In addition to the accusations of racism from the far-right talk show circuit, Ms. Sotomayor has already been accused of “judicial activism”, the popular conservative catch-phrase for liberal judges who, they believe, disregard the constraints of the law in order to impose their own vision of the world onto the disputes before them. This phrase is repeated often in the conservative commentariat, driven by their never-ending unhappiness with the Court’s decision in Roe v. Wade. And the criticism isn’t limited to conservative media. It has become a favorite refrain from Republicans, whether in exit poll interviews or dinner table discussions, as a means of de-legitimizing decisions of the Court with which they disagree.

Ross Douthat, in the New York Times, does an excellent job of showing the fallacy of this complaint. In an editorial calling for the placement of some limits on the power of the Supreme Court, he shows that the surest distinction between “liberal” and “conservative” judges is that the former are prone to invalildate federal law and the latter are more likely to find fault with state laws. An important distinction, to be sure, but not one that will result in the tyranny of the robes that conservatives warn us about. Instead, it reveals the allegation of “judicial activism” (which would be, and is, a serious problem when a judge does actually engage in it) to be mostly a short-hand label that gets attached to a judge or court who does something Republicans don’t like.

The truth is that, while the court may legitimately be described as becoming more likely to find statutes to be unconstitutional over the past fifty years, the increase has not been driven by any particular ideology or party. In fact, Douthat points out that one of the more conservative courts in recent memory was one of the most active:

Under Chief Justice William H. Rehnquist, the Court invalidated federal statutes at an unprecedented rate — and by the barest of majorities, in many cases. In one eight-year period, the University of Michigan’s Evan Caminker has noted, the Court invalidated 16 Congressional statutes by a 5-to-4 vote, something that had happened just 25 times in the previous two centuries.

There are, of course, profound reasons to monitor the Supreme Court and to disagree with its composition, its methods, its reasoning and its findings. It is the only branch of our government, after all, that is both powerful and unelected. But the consistent criticism made by those on the right–that the Court engages in liberal “judicial activism” (especially when, as Jeffrey Toobin has pointed out in his book “The Nine”, the current court contains four of the most conservative Justices in the history of the Court)–is not meant to be an analytical critique of the federal judiciary. Instead, it is a political phrase meant to energize the base by injecting fear into the process of selecting judges…the fear that judges on the left will take away your most basic rights simply because they disagree with you. And raising that fear only has one purpose: to prevent the President from nominating, or the Senate from confirming, Justices with whom conservatives disagree. This may be a politically skillful maneuver, but it is a particularly cynical approach to our judiciary, especially for the “law and order” party that proclaims such devotion to our founding documents and system of laws.

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