It’s Judicial Activism Season Again (Or ‘The Importance of an Independent Judiciary’)

Get ready for “Judicial Activism” season.  Yesterday marked the first Monday in October, the date upon which the Supreme Court convenes after its summer recess and the indignant cries of the “two branches of government is more than enough for me” folks have already begun.

Curt Levey over at Fox Nation writes: As with other ideologically charged issues in the hands of the courts, the future of gun rights depends as much on the composition of the federal bench as on the strength of the legal arguments. That’s why I and others predicted that gun owners – their fate tied to the selection of judges in the wake of Heller – would emerge as a potent part of the coalition advocating against liberal judicial activism and for judges who strictly interpret the Constitution.

The phrase “Judicial Activism” itself is a sort of political shorthand.  Those who favor it as an issue will typically define it as the tendency of judges to “legislate from the bench,” which is another loaded phrase which refers to the ability of the Courts to strike down laws and provisions which are in conflict (in the Court’s eyes) with the Constitution.  Levey’s “strict constructionist” argument falls flat when he sets it against “liberal judicial activism;”

The problem with Levey’s argument is that “Judicial Activism” is more or less a code-word for “a decision with which I disagree.”  Judges, particularly federal judges, are insulated from the political maelstrom that engulfs the rest of government.  This isolation, which former Supreme Court Justice Sandra Day O’Connor described in a speech in Roanoke, VA last month as the most significant innovation of the American system, allows judges the freedom to “apply the law without bias or prejudice and without regard to whether the decision is popular.”

Unpopular decisions generate political rancor which is in turn frustrated by the large degree of independence the Judiciary enjoys with cries of “judicial activism” are the result.

While these impotent cries have become the norm following almost any major court case the Court can not hold out forever even against such ineffectual offensives. Since the foundations of American Democracy were laid more than 200 years ago the judiciary has become more and more politicized and political. Today the majority of state judges are elected, not appointed, and in many cases those judges are compelled to campaign for their place on the bench with some regularity, introducing the distinct possibility that an unpopular ruling will cost them their jobs.  While this might seem a desirable outcome to some – a judge in fear of losing his job is more likely to rule according to the will of the people – Justice O’Connor is quick to point out that history is littered with examples of the Judiciary standing against popular opinion to defend justice from demagoguery.

“There has to be a place where being right – being correct – is more important than being popular; where fairness trumps strength,” O’Connor said, citing as an example the case of Mildred and Richard Loving, a bi-racial couple who were married in 1958.  When the Lovings were married, O’Connor asserted, a Gallup poll showed 96% of white people disapproved of interracial marriages.  By the time the case reached the Supreme Court in 1967 that number had dropped somewhat, but 72% of whites still wanted interracial marriage to be illegal.

O’Connor asked her audience: what would you have done?  If you knew you had to run for re-election as a judge, how would you have ruled?

The Supreme Court of the United States, whose Justices are appointed to life-time terms and need not fear the political consequences of their decisions, ruled unanimously in favor of the Lovings.  Judicial Activism?  George Wallace probably thought so.