Who Are the Activists Now?

What does President Bush mean, if anything, when he says that his kind of judge “knows the difference between personal opinion and the strict interpretation of the law”? Every judge sincerely believes that he or she is interpreting the law properly.

Bush’s complaint must be understood in the context of Republican Party history over the last half-century. Ever since Chief Justice Earl Warren and Brown vs. Board of Education (the 1954 school desegregation case), conservatives have complained about “activist” judges and justices who allegedly imposed their own liberal dictates on the country with no legal basis. Taking up this rallying cry is one way Republicans won the South. Even Southern conservatives don’t publicly complain about Brown anymore, of course. But denouncing activist judges is now Republican boilerplate.

Judges make decisions and impose their will all the time. That’s their job. When does this generally salutary activity turn into the dread judicial activism? If activism has any specific meaning, it means judges overruling laws and policies put in place by the democratically elected branches of government. It also refers to federal judges overruling policies enacted by the individual states.

George W. Bush may get to appoint as many as four Supreme Court justices, including the chief. But the complaint about liberal activism has been quaint for decades. All three chief justices since the “activism” fuss began were appointed by Republican presidents. Earl Warren, it’s true, was a bitter surprise to Republicans, but Warren E. Burger was not, and William H. Rehnquist was a positive delight. Liberal judicial activism peaked with Roe vs. Wade, the 1973 abortion decision (which Burger supported), and has been in retreat now for longer than it lasted.

Complaints about judicial activism are a habit left over from powerlessness. They seem especially retro when held up against today’s ambitious Republican judicial agenda. With one apparent exception, the major items on it are demands for federal judges to override Congress or states’ rights. Republicans cheer, for example, when courts overturn state or federal -- or even private -- affirmative action programs, and they boo when such programs are allowed to continue unmolested. They have great hopes -- largely unrealized, so far -- for the “takings” clause of the 5th Amendment as a tool for overturning environmental regulations or any other government policies that may reduce the value of someone’s property.

There is even a move afoot in the Senate to have Democratic filibusters against Bush’s judicial nominees ruled unconstitutional. That would be activism squared.

And let’s not forget that the Bush administration owes its very existence to the boldest act of judicial activism in a generation: the Supreme Court ruling that settled the 2000 presidential election dispute. Bush vs. Gore made imaginative use of the 14th Amendment’s equal protection clause to reverse the Florida Supreme Court’s interpretation of its own election laws.

Republicans will protest, sincerely if not always correctly, that these examples are all legitimate interpretations of the Constitution and not just invitations for judges to take a power trip. But that’s the point. One person’s constitutional interpretation is another person’s judicial rampage. Neither party has a magic formula for determining which is which, and, in practice, neither has been able to resist trying to enact its agenda through judicial fiat when it gets the chance.

The apparent exception to the activist nature of the Republican judicial wish list is abortion. Although I am pro-choice, I was taught in law school, and still believe, that Roe vs. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching. I also believe it was a political disaster for liberals. Roe is what first politicized religious conservatives (while cutting off a political process that was legalizing abortion state by state anyway). Three decades later, that awakened giant controls the government.

But has anybody read the 2004 Republican platform on abortion? It doesn’t merely call for reversal of Roe vs. Wade. It calls for “legislation to make it clear that the 14th Amendment’s protections apply to unborn children,” and for judges who believe likewise. How’s that for activism? If fetuses are “persons” under the 14th amendment, which guarantees all persons “equal protection of the law,” abortion would be illegal whether a state or the Congress wanted to keep it legal it or not. More than that: There could be no legal distinction between the rights of fetuses and the rights of human beings after birth. So, just for example, a woman who procured an abortion would have to be prosecuted as if she had hired a gunman to murder her child. The doctor would have to be treated like the gunman. And that includes capital punishment in states that have it. And the party that now controls all three branches of government says this is already the case. Only legislation is needed to “make it clear,” and judges are needed who will enforce it.

But no “activism,” please. The Republican Party can’t stand that.