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Jul. 13 2009 - 11:55 am | 16 views | 2 recommendations | 16 comments

Every judge is an “activist judge”

Sonia Sotomayor, the Supreme Court nominee, before the Senate Judiciary Committee on Monday. (Image from Mark Wilson/Getty Images)

Sonia Sotomayor, the Supreme Court nominee, before the Senate Judiciary Committee on Monday. (Image from Mark Wilson/Getty Images)

Senator Jeff Sessions wasted no time today at the top of Sonia Sotomayor’s confirmation hearing. The New York Times live-blog reports that shortly into his speech, he said that the confirmation hearing marks a “fork in the road.” Sessions is worried by President Obama’s decision to include empathy as a qualification for the Supreme Court. Remember, “empathy” is that bad thing we don’t want in our judges.

“Like the American people I have watched this process for a number of years, and I fear this empathy standards is another step down the road to a liberal activist, results-oriented and relativistic world where – laws lose their fixed meaning, unelected judges set policy; Americans are seen as members of separate groups rather than simply Americans, and where the constitutional limits on government power are ignored when politicians want to buy out private companies. ….Call it empathy, call it prejudice, but whatever it is, it is not law. In truth, it is more akin to politics. And politics has no place in the courtroom.”

But what Sessions fails to acknowledge is that politics is always in the courtroom, and every justice has their own set of ideologies, biases, and prejudices. Rolling out the fossilized attack of “liberal activism” may be part of more political grandstanding. However, this line of thinking is not only antiquated, but also disingenuous. Two of the biggest partisan hacks on the court, Clarence Thomas and Antonin Scalia (both Republicans) are wildly ideologically biased, and yet they are never labeled as “activist judges.”

Scalia could be called a gun activist, since he is a gun owner, and went beyond defending the Second Amendment in his ruling during District of Columbia v Heller. He said self defense is a “central” constitutional right that requires the ownership of guns (specifically handguns) be permitted so that it can be fully exercised. Crowbarring “handguns” into the definition of “right to bear arms” might have opened up Scalia to accusations of being a “right-wing activist,” but luckily, he avoided such inconveniences.

Clarence Thomas, Scalia’s younger, crazier cousin, is the definition of an activist judge. Check out his dissent in the voting rights case Northwest Austin Municipal Utility District No. 1 v. Holder. Thomas was the only one of the nine justices who wanted to throw out Section 5 of the 1965 Voting Rights Act as an unconstitutional intrusion on states’ rights.

The Voting Rights Act (VRA), originally enacted into law in 1965, establishes comprehensive safeguards against discrimination in voting based on race, color, national origin or language status. One of the act’s provision (Section 5) requires that “covered” jurisdictions submit any changes in election practices for “preclearance” to either the attorney general or a three judge panel of the federal district court in Washington, D.C.. Northwest Austin Municipal Utility District No. 1 v. Holder involved a wealthy Texan district arguing that it should be exempt from the jurisdiction provision of VRA on the grounds that the district isn’t racially diverse (the combined African-American and Latino population of the district is 7 percent,) and the district is too small for Section 5 to apply to it, and the burden of its application is “too great.”

The Department of Justice and the NAACP defended the constitutionality of Section 5 by stressing the ongoing need for federal involvement in ensuring that the Fifteenth Amendment, which bars discrimination based on race in voting, is protected.

The Supreme Court basically avoided making a decision on this case, but Thomas was the only judge to propose throwing out Section 5. Chief Justice John Roberts wrote the court’s opinion that avoided a decision on Section 5’s constitutionality. Some legal analysts accused Roberts of rewriting the law, which might have been seen as an activist move, but Roberts is a Republican, who as we all know, are incapable of activism.

Northwest Austin Municipal Utility District No. 1 v. Holder was an extremely important case because Republicans continue to actively work to suppress minority voting by introducing legislation like PCB-EDCA 09-08 (AKA House Bill 7149,) a Republican-sponsored measure to suppress the minority vote in Florida. By adding impediments to voter registration, early voting, and election day voting, Republicans were clearly targeting minority voters (historically Democrat votes,) which illustrates why the need for VRA and Section 5 are still essential. PCB-EDCA 09-08 is only one example of many such cases.

Unfortunately, Activist Justice Clarence Thomas doesn’t see it that way: “Enforcement efforts before the enactment of Section 5 had rendered the right to vote illusory for blacks in the Jim Crow South,” Thomas wrote. “Despite the Civil War’s bloody purchase of the 15th Amendment, the reality remained far from the promise.” Thomas argued that because seven states, which are covered by Section 5, have black voter registration that exceeds the national average, this somehow proves that the law no longer meets the threshold for being a constitutional exercise of congressional power over the states.

Nor does Thomas think states should be burdened by “second-generation barriers,” racial polarization or “discrete and isolated incidents of interference with the right to vote.” Such an opinion appears to be firmly rooted in Thomas’s own biases and ideologies, which makes him the very definition of an “activist” for his own beliefs.

So please, put the partisan hackery of “activist judges” to rest (forever.) All judges are activists, even when they claim to be “strict Constitutionalists” like Scalia. Even a justice that claims to strictly adhere to the word of the original law must occasionally creatively interpret the arcane language of the Constitution as Scalia did in District of Columbia v Heller. Whenever interpretation occurs during rulings, justices rely on their past experiences, ideologies, biases, prejudices, and yes — the most dreaded of human qualities — empathy. 


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  1. collapse expand

    As much of an ass that Sessions was this morning, that’s how impressive Senator Whitehouse was.

  2. collapse expand

    The comment from Sen. Sessions is extremely typical. Anything with an agenda that differs from their own is divisive and “political” – whereas their own side is, presumably, neutral, apolitical and morally righteous. Whenever they say they want to get rid of politics, what they really mean is that they want to get rid of debate and democracy. In other words: “Democracy aside, what’s best for business?” Or: “The masses aside, what’s best for the wealthiest 1% who control us like the puppets we are?”

  3. collapse expand

    I thought Franken was a tad nervous, but that’s fully understandable.

  4. collapse expand

    Couldn’t agree more. Great piece.

  5. collapse expand

    I think he’ll be keeping it under wraps for awhile. Sad for us!

  6. collapse expand

    Humm…still trying to get my head around Sessions comment, “Call it empathy, call it prejudice, but whatever it is, it is not law.”
    This from a guy who was refused an appellate judgeship because he saw nothing wrong with the KKK ‘cept some of them smoke marijuana.

  7. collapse expand

    You can even say that the Court’s right to interpret the Constitutionality of acts of Congress is an “activist” interpretation that wouldn’t stand up to a strict constructionist view of the Constitution. When Justice Marshall asserted the Court’s province over these matters in Marbury v. Madison, it was a hugely controversial decision. There’s nothing in Article 3 on its face that asserts that the Court has authority to declare Congressional acts or executive orders unconstitutional.

    But … I actually had the opportunity to raise this very point to Justice Scalia when I was a freshman in college. He’s a pretty smart guy and he took my argument, wrapped it up into a ball, and shoved it back up in me in a most uncomfortable fashion. I don’t remember the full beating, but it involved the difference between “interpreting” law and “making” law.

    I’d like to come at him again post Bush v. Gore though.

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