WASHINGTON (ABP) — Even though “judicial activism” may simply be in the eye of the beholder, according to legal experts, it is a recurring charge against judges that is almost as old as the Republic itself.
But that hasn't kept the charge from becoming the latest political news. Whatever it is, “judicial activism” has Washington and the nation in an uproar, emerging as the Religious Right's latest rallying cry in the culture war.
“Our judiciary has banned prayer in schools and evicted Christmas displays from town halls,” said House Majority Leader Tom DeLay (R-Texas), to a recent conference of religious conservatives in Washington. “These are not examples of a mature society, but of a judiciary run amok.”
And Focus on the Family leader James Dobson, speaking in Kentucky April 24 to a rally designed to push President Bush's nominees to federal courts, said “the issues we care about and the values that are important to us” are being threatened by court decisions.
“There is a majority on the Supreme Court that is … unaccountable and arrogant and imperious and determined to redesign the culture according to their own biases and values, and they're out of control,” Dobson said.
What could provoke such strong language by DeLay, one of Congress' most powerful leaders, and Dobson, patriarch of the evangelical right? Perhaps these two factors — a highly partisan political debate over judicial nominees in Washington and recent court decisions that have particularly outraged conservative religious activists.
The recent Terri Schiavo case — in part due to the emotional issues it raised — brought intense scrutiny to the role of judges in dealing with controversial cases. But for many conservative religious activists, an allegedly out-of-control state and federal judiciary has been an issue of concern for years.
In the April edition of Focus on the Family's Action newsletter, Dobson leveled the “activism” charge at the judiciary in general.
“How could such a great and freedom-loving people have allowed themselves to be dominated by a handful of unelected, unaccountable, arrogant and often godless judges, many of whom receive lifetime appointments and regularly circumvent the democratic process?” he asked.
Dobson mentioned Thomas Jefferson's warnings about the Supreme Court's famous 1803 Marbury vs. Madison decision, which firmly established the principle of “judicial review,” which means that federal judges get to examine laws enacted by legislatures to ensure that they conform to the Constitution.
“What we have today, 202 years later, is an oligarchy (rule by a small cadre of elites),” Dobson wrote. “The courts simply strike down laws and policies they don't like, whether their opinions reflect the provisions of the Constitution or not.”
That's exactly what many conservatives mean when they accuse a judge of “activism,” according to Tom McClusky, director of government affairs for the Washington-based Family Research Council.
“Activist” judges are “judges who seem to reach beyond the Constitution and the power granted to them in the Constitution — and the laws passed by Congress or even by state legislatures — and [who end up] making law, instead of their role through the Founding Fathers…to interpret law,” McClusky said. His group has been at the forefront of many of the most controversial federal court cases in recent years — such as the Schiavo case and cases over government-sanctioned religious expression.
When asked for examples, McClusky cited the four-judge majority on the Massachusetts Supreme Judicial Court that, in a 2003 decision, paved the way for the legalization of same-sex marriage in that state.
“I mean, they cited international law, they cited their own personal opinion on the issue of same-sex marriage,” McClusky said. “It's Congress' role to pass legislation, and it's the judiciary's role to interpret that legislation. But, more and more, they seem to be completely changing any intent” that legislators might have had in passing laws.
The problem, several legal experts said, is that interpreting the Constitution — particularly in a society far more complex than its writers could have dreamed of — is about as exact a science as interpreting the Bible.
“Nobody ever complains about 'judicial activism' when they agree with the opinion,” said Brent Walker, executive director of the Washington-based Baptist Joint Committee for Religious Liberty. “People try to make a sharp distinction between interpreting the law and legislating from the bench, but which one that is is often in the eye of the beholder.”
“A 'judicial activist' is a justice with five votes, and 'judicial activism' is an opinion that you disagree with,” said Walker, whose organization advocates for a strong reading for both of the First Amendment's religion clauses — which ban both government establishment of religion and restrictions on the free exercise of faith.
For example, he noted that many conservatives have criticized a recent Supreme Court decision on capital punishment. In it, the court's majority found the practice of executing convicts who were under 18 at the time they committed their crimes a violation of the Eighth Amendment's ban on capricious punishments.
“When you try to unpack the meaning of 'cruel and unusual punishment' in the Eighth Amendment, what did it mean 200 years ago and what does it mean for us today?” Walker asked. “There's a lot of room for disagreement over whether applying those four words and that very general concept amounts to interpreting the law or making the law.”
Charlie Geyh, a professor at Indiana University School of Law, said the very nature of judging — determining what the law is and applying it to an individual case — often lends itself to the charge of “activism” from those on the losing side.
“The tricky part is when there is a case where the court … fills the gap by saying, 'We don't know what the law is,' the loser is almost invariably going to think the judge has gone further than he should have in filling that gap,” he said.
He referred to the Marbury vs. Madison decision itself. “It was an open issue. There was nothing clearly stated in the Constitution to give them that power [of judicial review], but the court looked at the Constitution and said, 'Yes, we have that power,'” said Geyh, who has a forthcoming book on the courts and Congress.
“The judges have to be activist in some sense, because the only reason that they are being asked to resolve questions is because they are … questions that are undecided,” he continued.
The conservative critiques of judicial activism in the modern environment, Geyh contended, come in two main forms. “One is to say that it's one thing to acknowledge the flexibility of the constitutional language and another thing to abuse it,” he said, referring specifically to cases in which courts have determined Americans have rights to privacy, reproductive autonomy and other civil liberties, even though those rights are not protected explicitly by the Constitution.
“In those areas, from the conservative standpoint, there's flexibility perhaps, [but] not as much as these judges have given to it,” Geyh said. “That approach [against judicial activism] is a perfectly honorable one.”
But, he continued, “the second is to use it as a political buzz phrase, with which I have problems.” That view, according to Geyh, contends that, if judges “decide something that is contrary to our view of the law, they must necessarily be activists.”
But the “activism” accusation increasingly is fueling a political debate in Washington. Democrats in the Senate have blocked 10 of President Bush's judicial nominees because of what they call extremist beliefs on certain issues. Meanwhile, Bush — and his supporters in the religious conservative community — have mounted an all-out effort to get all of his nominees passed because those judges “won't legislate from the bench,” as Bush has repeatedly said.
Historically, appointees of conservative Republican presidents have been accused of activism of their own, Geyh said. For instance, he noted, the current Supreme Court — dominated 7-2 by Republican appointees and considered very conservative by mainstream legal scholars — has struck down laws passed by Congress at a much faster rate than its more liberal predecessors.
“When [Chief Justice William] Rehnquist's court has gone ahead and looked at Commerce Clause jurisprudence, it turned back the clock 60 years and ignored congressional power,” Geyh said. “Now from the standpoint of liberals, that is activism.”
“From the conservatives' account, that is simply correcting the course — going back to the original intent [of the Constitution]. So, each side can lay claim, can point the finger to the others and say 'you're being activist.'”
He also cited the court's still-controversial 5-4 decision in the 2000 Bush vs. Gore case that effectively ended that year's drawn-out presidential election — and gave the presidency to Bush. Gore supporters accused the court's majority of ignoring their own precedents in ruling on cases involving the Equal Protection Clause of the Constitution.
Brent Walker noted that “it was the most conservative justices, with Justice [Antonin] Scalia leading the way, who gutted the Free Exercise Clause” of the First Amendment in a 1990 decision, Employment Division vs. Smith, that limited the religious-liberty rights of individuals and groups. “The court overturned decades of precedent without either party urging it to do so, [either] briefing the issue or addressing it in oral argument,” Walker said.
One of Bush's filibustered nominees to the 5th U.S. Circuit Court of Appeals was once herself accused of an “unconscionable act of judicial activism” — by Bush's own attorney general. The accusation was made by then-Texas Supreme Court Justice Alberto Gonzales against his colleague, Priscilla Owen, and two others who dissented from a majority opinion on an abortion case.
And some groups repeatedly accused the judges involved in the Schiavo case of “activism” — even though the main Florida state judge, George Greer, is a conservative Republican and Southern Baptist whose decisions repeatedly were upheld by higher state and federal courts.
“The truth is, 'judicial activism' is just about today's emptiest soundbite,” said Jesse Rutledge, spokesman for the Justice at Stake Campaign. “It's come to mean any decision you don't like, or, more broadly, any series of decisions you don't like.”
Rutledge's group was formed about two years ago, he said, “to address the political attacks coming from politicians and special-interest groups” against judges and their rulings. Justice at Stake believes such attacks undermine public trust in judicial decisions — which, they say, ultimately undermines the institution of the independent judiciary and the constitutional order.
But Rep. Lamar Smith (R-Texas), addressing conservative activists in Washington earlier this month, said it's not undermining the courts when, in his view, they have usurped the authority of the other branches of government.
“Activist judges regularly deny the Constitution when they take for themselves powers guaranteed in the Constitution to the executive and legislative branches of government,” he said. “Congress is right to evaluate judges when they behave like unelected superlegislators. When judges step out of bounds, Congress should in fact raise a red flag. This is not an attack on the separation of powers. It is Civics 101.”
Rutledge said attacks on the judiciary from liberals are just as harmful as those from conservatives.
“Many liberal groups are engaging in the same angry rhetoric and are trying to match fire with fire and say that there is such a thing as conservative 'judicial activism,'” he said. “From where we sit, we think the term is so empty as not to mean anything.”
As a remedy, Rutledge said, the warring parties should set the term aside “and engage in a more comprehensive, thoughtful debate about the role of the courts in our society.”
“We charge our courts with making the most difficult decisions,” he continued. “That is what they are there to do. That is their job. And there are always going to be controversial cases, there are always going to be losers, there are always going to be hurt feelings that come out of our system of government. And if every time you lose, all you do is scream until you're red in the face at the umpire, then, you know, maybe you're just a sore loser.”
But Rutledge's dream of a civil debate on the role of the courts may not be taking place anytime soon, if the current rhetoric prevails.
Dobson, in his Action newsletter article, called for the impeachment of six of the nine U.S. Supreme Court justices — four of them the appointees of Republican presidents. He called for all of Bush's nominees to be approved. “These judges are all committed to applying the Constitution of the United States in a conservative manner and interpreting it as it is written,” he said.
“If these individuals, and many others like them, were to be appointed to the federal bench, we could make significant strides toward the restoration of religious speech to the public square, the enforcement of laws regulating obscenity, the protection of voluntary prayer in public schools, the defense of the institution of traditional marriage, and the protection of pre-born babies from the horrors of abortion.”
“In short,” he continued, “the makeup of the federal judiciary in the coming years will play a key role in determining how these issues — and many others that we hold dear — will be decided, and in demonstrating what kind of people we are as a nation.”