judges

Irresponsible rhetoric, if you want to find examples, abounds in current debates over "activist" judges...and it comes from the left and right.

Everytime a person uses "activist" while speaking of judges and Justices, they engage in irresponsible, and more importantly, damaging, rhetoric. A Times op-ed, today, makes this point (and I point it out because my next post will point out the worst attempt at argument I've seen for months, and it appears in a Times op-ed.) The fact of the matter is this: there is absolutely no way to apply, nor even to speak of, the Constitution (or any text for that matter) without assuming some interpretive lense. The Constitution is not a computer program matrix into which we can simply insert facts and produce answers. As my legal theorist friend mentioned recently, even the strict constructionalist makes a choice. And a choice is action.

As Adam Cohen points out, today:

The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution's plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just fine when it advances their own agendas.

Justice Scalia's views on federalism - which now generally command a majority on the Supreme Court - are perhaps the clearest example of the problem with the conservative attack on judicial activism. When conservatives complain about activist judges, they talk about gay marriage and defendants' rights. But they do not mention the 11th Amendment, which has been twisted beyond its own plain words into a states' rights weapon to throw minorities, women and the disabled out of federal court.

The 11th Amendment says federal courts cannot hear lawsuits against a state brought by "Citizens of another State, or by Citizens or Subjects of any Foreign State." But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms."

Wow. Sounds an aweful lot like the "penumbra" from Griswold so infamous amongst the right.

And:

The classic example of conservative inconsistency remains Bush v. Gore. Not only did the court's conservative bloc trample on the Florida state courts and stop the vote counting - it declared its ruling would not be a precedent for future cases. How does Justice Scalia explain that decision? In a recent New Yorker profile, he is quoted as saying, with startling candor, that "the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world." That, of course, isn't a constitutional argument - it is an unapologetic defense of judicial activism.

The op-ed is actually wrong in calling Scalia a strict contructionalist. He maintains that he is an "Originalist," in that, he finds what the founders, two centuries ago, meant by their words. Anyone that has considered historiography, of course, knows the level of interpretive license this requires. The point, though, remains. You make a choice.

The Constitution fits in any vest pocket. It is scarse and (quite importantly) begs for interpretation. We could have gone about this with a thousand amendments. I think Mike, our fellow blogger, would call for this option. I think the wiser course has been taken, resembling much more the common law of Britain.

And liberals, too, should be wary of their rhetoric when addressing Constitutional law and the domain of Federal judges. I heard my favorite professor, Erwin Chemerinsky, give this warning, and it was offered again in a recent commentary by Professor Lazarus (a critic, by the way, of Roe v. Wade). Progressives ought not over-praise nor under-praise a judiciary that reaps results we appreciate ("we," as I count myself amongst those being addressed). Lazarus makes the good point that the judiciary is not the sole interpreter of the Constitution. Progressives have praised the interpretive qualities of the Supreme Court in Brown and Lawrence, while frowning on no greater leaps of interpretaion in Bush v. Gore and almost any takings clause case.

(Lazarus makes a strinking point with which I disagree: he calls Dred Scott activist. If anything, this seems the most frustratingly strict contructionalist case I've ever read.)

In closing, liberals should carefully consider motives versus reason when defending a court decision. Everyone else needs to drop this myth of activist judges. The Constitution can be nothing but interpreted, and there is no inherently purer way to do this than the next.