The Myth of Activist Judges

Dahlia Lithwick covers courts for

Among all the soaring weirdness on display during the presidential and vice presidential debates, most of us completely missed the fact that neither the president nor his vice president has a clue as to how courts really work. That’s because at this moment in history, you needn’t really understand courts to despise them.

First we witnessed Dick Cheney, intoning squintily: “In Massachusetts we had the Massachusetts Supreme Court direct the state of -- the Legislature of Massachusetts to modify their constitution to allow gay marriage.” On Friday we heard the president -- evidently in the throes of some history-induced seizure -- respond to a question about potential Supreme Court nominees: “Another example would be the Dred Scott case, which is where judges years ago said that the Constitution allowed slavery because of personal property rights. That’s personal opinion. That’s not what the Constitution says.”

Cheney and Bush brazenly mischaracterized the actions of those courts. Cheney was trying to disparage an “activist” Massachusetts Supreme Court in last year’s Goodrich vs. Department of Public Health. But that court was simply interpreting the state’s constitution to find that when it said treating whole classes of citizens as second class was impermissible, it meant it. No one ordered that the state constitution be modified.

Agree or disagree with the result, but the court’s act -- of interpreting state law -- wasn’t unfettered “activism.” Similarly, Bush’s argument that the justices who decided the 1857 case of Dred Scott vs. Sanford were “activists” because they privileged their “opinions” over the U.S. Constitution was incorrect. Chief Justice Roger Taney read the spots off that Constitution to find “that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people.” Dred Scott was not free, the majority ruled, because the Constitution did not consider him free. That was, as a matter of constitutional formalism, accurate. The 13th Amendment, abolishing slavery, wouldn’t be ratified for eight years.


Bush and Cheney torture legal history to suggest that “activist judges” means only “judges we disagree with.” They get away with this largely because we have swallowed the myth of activist judges without ever tasting or chewing. The words have become so loaded -- so fraught with non-meaning -- that no one even stops to question them.

Lest you think judge-bashing is all just rhetorical, here’s an image to accompany the words: Last week the Republican-led House of Representatives voted to split the U.S. 9th Circuit Court of Appeals -- the federal appellate court whose reach stretches from the western U.S. to Alaska to Hawaii to Guam. The plan -- introduced as a last-minute amendment to a larger bill -- would split that court into three, with Hawaii and California isolated into some kind of Liberal Leper Circuit. The benign explanation for this emergency dissection is the court’s vast size. But that claim has been around since the 1940s. The real reason for the renewed need to hack up the court is upcoming elections, demagoguery and the increasingly bold attacks by politicians on “activist courts.”

Courts are, if you stop to consider, the perfect scapegoat. The criticism is diffuse; they cherish their dignity; and they are structurally incapable of responding to attacks.

The 9th Circuit is a demagogue’s dream. Last year a three-judge panel attempted to halt the California recall election. The year before, the court found the presence of the word “God” in the Pledge of Allegiance unconstitutional. The court’s reversal rate in the U.S. Supreme Court was long a national punch line -- although that number has leveled off in recent years.

Rep. Rick Renzi (R-Ariz.) voted for the split because, as he said in decrying the court’s decision to invalidate the Pledge, “These contemptuous judgments tear at the moral fabric of our nation, disregard the will of the people and force a corrupt ideology upon our society.” Renzi, like Bush and Cheney, is willing to poison the long-term legitimacy of the judiciary for a short-term payoff on the stump.

Because the circuit-division proposal cannot pass in the Senate, the net effect of this last-minute grandstanding will be to kill a larger bill that would have added 58 desperately needed new judgeships across the nation. The solution to the problem of an overburdened, thinly stretched judiciary, then, is to ensure it’s short-handed.

There are some reasonable arguments for splitting the 9th Circuit: It covers nine states and 57 million people. It handles nearly double the average number of appeals heard by the other appellate courts. Yet most of its judges think it works fine, and there’s little evidence that it’s doing a worse job than the other circuits.

The real reason to leave the 9th Circuit alone is that chipping away at its credibility and independence, with a thousand cheap political shots, is doing violence to the notion of an independent judiciary.

Running a political campaign on the promise of neutralizing “activist judges” is the worst form of cynicism. The real danger to our democracy isn’t from out-of-control activist judges. It’s from out-of-control hyper-activist legislatures.