!
Judicial Activism
HOLDING
THE LINE
Scalia-style strict constructionists are
standing in the way of a living Constitution.
by Curt Levey
Recent decisions by the U.S. Supreme
Court and Californias highest court have
put the focus on the growing threat to
the rule of law, national security and
American society posed by judicial
activism. In June alone, the U.S. Supreme
Court discovered a constitutional right
to federal court access for Guantanamos
enemy combatants (Boumediene v.
Bush) and a constitutional prohibition
on executing child rapists (Kennedy
v. Louisiana). One month earlier,
the California Supreme Court was
equally inventive, finding a right to gay
marriage in the states Constitution (In
re Marriage Cases).
While this spate of high-profile
activist decisions may have set a new
record, the problem of lawless courts has
been with us for decades now. Eminent
Supreme Court observer Stuart Taylor
recently observed, The steady accretion
of both state and federal judicial power
since the 1950s has left a malleable mass
of hundreds of precedents straying ever-
further from the original understanding
of the constitutions and laws they
purport to be interpreting. Its enough
28 TOWNHALL August 2008
to make Justice Antonin Scalias wish
for judges who give [laws] the meaning
they bore when the people adopted
them seem quaint.
The American peoplethe real
victims of judicial activismare acutely
aware of the problem. A Rasmussen
opinion poll found that 60 percent
of Americans believe Supreme Court
justices have their own political agendas,
while only 23 percent believe that
the Court decides cases impartially.
Similarly, a 2005 survey by the
American Bar Association revealed that
Americans, by an almost two-to-one
margin, agree that judicial activism
seems to have reached a crisis. Judges
routinely overrule the will of the
people, invent new rights and ignore
traditional morality. No wonder GOP
voters rank the appointment of Supreme
Court justices as a more important
presidential election issue than the
war in Iraq and want their presidential
nominees to promise to pick Supreme
Court justices in the mold of Scalia and
Clarence Thomas.
In light of the publics growing minority hiring preferences?
concern, the purveyors of judicial
activismand its handmaiden, the
living Constitutiontry hard to
blur the distinction between activist
and legitimate court decisions. So its
important to clarify that true judicial
activism is marked by the elevation
of a judges policy preferences above
objective interpretation of the law,
such that the resulting decision is not
plausibly grounded in the commonsense
meaning or original intent of the
constitutional or statutory text at issue.
The Supreme Courts infamous Dred
Scott decision, which reinforced the
property rights of slave owners, is
one of the earliest examples of judicial
activism. However, in modern times,
judicial activism has been championed
and implemented almost exclusively
by progressives. It is a favorite tool in
the culture wars and is often couched
in such feel-good terms as protecting
the powerless and expanding rights.
Barack Obamas description of the
proper judicial philosophy is typical:
We need somebody whos got the heart,
the empathy, to recognize what its
like to be a young teenage mom. The
empathy to understand what its like
to be poor, or African-American, or
gay, or disabled, or old. And thats
the criteria by which Im going to be
selecting my judges.
Among its other faults, such
progressive descriptions of good
judging are little more than a license
for unbridled judicial discretion. For
example, does understanding what its
like to be African-American instruct
a judge to rule in favor of racial
preferences? Or does empathy for the
poor imply that the judge should rule
for the poor, white job applicant who
lost a job to the affluent beneficiary of
 Judicial Activism !

Supporters of a strict constructionist view

of the Constitution, including the thousands
of Americans who march on the Supreme
Court every year to protest Roe vs. Wade,
are hoping that conservative justices such
as Antonin Scalia and Clarence Thomas will
be able to keep an activist judiciary at bay.

August 2008 TOWNHALL 29

! Judicial Activism
Conservative
judges cant
compete when
it comes to
judicial
activism.
Liberals are fond of alleging that
strict constructionist judgesthat is,
non-activistsallow a conservative
ideological bias to influence their
judicial decisions. In fact, conservative
judges cant compete when it comes
to judicial activism, because theyre
not even trying. Sure, their biases
sometimes cloud the objective
interpretation they shoot for. But
many liberal jurists dont even shoot
for objectivity. Instead, they are proud
of belonging to the school of judging
exemplified by Barack Obamas
yearning for a judge who will bring in
his or her own perspectives, his ethics,
his or her moral bearings.
VARIOUS FORMS
Within the broad category of judicial
activism, there are many shades and
flavors. Here are some of the common
forms that activism takes:
> Construing black as white. Arguably,
the most blatant form of judicial
activism is when courts conclude
precisely the opposite of what the
relevant statutory or constitutional
provisions require. A classic example
is the precedent-setting case Cohen v.
Brown University (1st Circuit, 1996),
which dealt with an administrative
interpretation of Title IX, dating
back to the Carter administration, that
requires quotas and similar preferential
treatment for female athletes, often at
the cost of eliminating thriving mens
teams. The Cohen court found this
interpretation to be fully consistent with
Title IXs command that No person
on the basis of sex, be excluded from
participation in or be subjected to
discrimination under any education
program or activity. Worse yet, the
court blessed the quota, despite Title
30 TOWNHALL August 2008
IXs explicit requirement that the
statute not be interpreted to require
any educational institution to grant
preferential or disparate treatment to
the members of one sex on account of an
imbalance.
> Twisting doctrines beyond recognition.
The quintessential example of this
form of activism is the Supreme Courts
mangling of the Establishment Clause,
which was intended to prevent the
establishment of a national church.
Beginning with Everson v. Board
of Education (1947), the Court has
misinterpreted the First Amendments
command that Congress make no law
respecting an establishment of religion
as erecting a wall of separation between
church and State. The wall grew higher
over the years, leading to decisions such
as Santa Fe v. Doe (2000), in which the
Supreme Court ruled that student-led
prayer at high school football games is
unconstitutional.
> Inventing new rights. Who can resist
inventing a new constitutional right
when it feels so good? Certainly not the
Ninth Circuit, the nations most liberal
federal appeals court. Consider Nelson
v. NASA (2008), in which the appeals
court decided it is unconstitutional for
NASA to require its contract employees
to undergo background investigations.
Unfortunately, the background checks
collide with the constitutional right to
informational privacy conjured up by
the Ninth Circuit.
> Ignoring old rights. With so many new
rights popping up, its hard to focus on
the old ones. In Irish-American Gay,
Lesbian and Bisexual Group v. Boston
(1994), Massachusetts highest court saw
no First Amendment problems when
a trial judge ordered the sponsors of
Bostons annual St. Patricks Day parade
to allow a homosexual organization to
participate. The court had no use for
the First Amendments guarantee of
freedom of expression and assembly
that is, until it was unanimously
reversed by the U.S. Supreme Court.
> Playing policymaker. Activist judges
imagine themselves to be policymakers,
and often, theyre unabashed about
it. Witness Justice Harry Blackmuns
justifying, in Roe v. Wade (1973), a
constitutional right to abortion: This
holding, we feel, is consistent with
the relative weights of the respective
interests involved, with the lessons and
examples of medical and legal history,
with the lenity of the common law,
and with the demands of the profound
problems of the present day.
As Blackmuns explanation
demonstrates, one of the tricks of the
judicial activists trade is to hide behind
lofty but empty verbiage. For the non-
attorney learning to spot cases of judicial
activism, one of the surest signs is
language that sounds like it came out of
a self-help book rather than a legal text.
For example, the California Supreme
Courts recent gay marriage decision
was grounded in the newly discovered
constitutional right to have ones family
relationship accorded dignity and respect
equal to that accorded other officially
recognized families. In choosing such
feel-good language, the Court hopes no
one will notice that it is nowhere to be
found in the California Constitution.
Similarly, Planned Parenthood v.
Casey, the Supreme Courts 1992 decision
reaffirming Roe, finds the constitutional
right to abortion in the broader right to
define ones own concept of existence,
of meaning, of the universe, and of the
mystery of human life. Three decades
earlier, the groundwork forRoe was
laid when the Supreme Court, in
Griswold v. Connecticut (1965), struck
down an unenforced state law banning
contraceptive use as a violation of the
constitutional right to privacy. That
right cannot be found in the text of the
Constitution, but the Court explained that
specific guarantees in the Bill of Rights
have penumbras, formed by emanations
from those guarantees that help give them
life and substance. Various guarantees
create zones of privacy.
These New Age emanations from the
minds of Supreme Court justices would
be humorous if they didnt have such
destructive consequences.
WHAT IT ISNT
The obfuscation of activist judging
can be found, not only in the decisions
themselves, but also in the hand waiving
of activisms enablers, who increasingly
try to blur and distort the definition of
judicial activism.
Judicial activism is not the
overturning of actions by the other
!"#$%&!'()*&&+,-.,./&&0123&45&&467)&0

With wisdom and lucid prose, Levy and Mellor

go straight to the sad, central truth of the American
judiciary. We have created a system in which nine
people are presumed to be smarter than 300 million.
-P.J. ORourke, author of On The Wealth of Nations

Levy and Mellor, in this excellent examination of twelve far-reaching

Supreme Court cases, force readers to question the direction in which
the judiciary has led our country over the past century.
-Publishers Weekly

A passionate, thoughtful, provocative, and eminently readable book.

-Eugene Volokh, Professor of Law, UCLA; founder of the Volokh Conspiracy blog

The Dirty Dozen spotlights twelve U.S.

Supreme Court cases that changed the
course of American history by diminishing
our rights. Co-authors Robert Levy of
the Cato Institute and William Mellor
of the Institute for Justice reveal the
on-going impact these cases have on
individual freedoms, provide insights
into the proper role of the Court,
and call for judicial engagement to
remedy these harmful decisions.
$25.95. Published by Sentinel,
an imprint of Penguin Group USA.
Available at Amazon.com,
in bookstores nationwide,
and at 800.767.1241.
! Judicial Activism
tk

branches. While judges owe some

deference to the legislative and executive
branches, the required deference is
not absolute. To the contrary, courts
are obliged to strike down statutes,
regulations and the like when they
clearly conflict with a higher source of
law, such as the Constitution. Dont be
fooled by the defenders of liberal judicial
activism, who have spent the last decade
trying, when convenient, to redefine
judicial activism as lack of deference to
Congress and state and local legislatures.
A particularly blatant example of this
tactic is a June 2007 New York Times
editorial decrying Parents Involved v.
Seattle, which struck down race-based
student assignment plans in Seattle
and Louisville. The Times declared the
decision to be the height of activism:
federal judges relying on the Constitution
to tell elected local officials what to
do. The Times apparently failed to
notice that its description of outrageous
activism applies equally well to the most When a strict interpretation of the his colleagues were enforcing, not the
sacred of all Supreme Court decisions, Constitution is abandoned, we have Constitution, but the views and values
Brown v. Board of Education. no longer a Constitution; we are under of the lawyer class from which the
Judicial activism is not the failure to the government of individual men, Courts Members are drawn.
follow precedent. Courts must generally who for the time being have power The Supreme Court is fond of citing
adhere to their past decisions and those to declare what the Constitution is, evolving standards of decency to
of higher courts. But, as law professor according to their own views of what it hide the huge gap between its values
Gary Lawson notes, if the Constitution ought to mean. and those of the American people.
says X and a prior judicial decision says > Undemocratic. The progressives who But sometimes judges are more
Y, a court has not merely the power, but fuel judicial activism from inside and honest about the gap, as in Tennessee
the obligation, to prefer the Constitution. outside the judiciary are committed v. Middlebrooks (1992), where the
To say otherwise, particularly of the to using the courts to achieve political Tennessee Supreme Court vacated
Supreme Court, is to say that judicial agendas that are too far out of the a death sentence, with a plurality
activism can never be corrected. mainstream to be enacted through of justices opining that the level of
Judicial activism is not every decision democratic means such as legislation community morality will continue to
that angers conservatives. Nor is it every and ballot initiatives. Often, these rise until the reasoned moral response
decision that arguably should have agendas have been explicitly rejected by of the people of Tennessee will be, if it
gone the other way. Conservatives have voters and legislators, as we saw most is not already, that the death penalty is
every reason to be angry about judicial recently with the gay marriage decision cruel and unusual punishment.
activism, but they handicap the battle in California and the U.S. Supreme > Reliance on international law. It is
against it when they overuse the term. Courts Gitmo decision. Its instructive no coincidence that activist judges are
that liberals fear the overturning of increasingly relying on international
WHY ITS DANGEROUS Roe precisely because it would return law. After all, when youre discovering (Photos lr: AP/J. Scott Applewhite, AP/Ron Edmonds)

Whats so bad about occasionally
stretching the Constitution to achieve a
truly important result? Judicial activism
threatens, not only the rule of law, but
also the American political process and,
potentially, each and every American.
> Unrestrained power. Because judicial
activism lacks any standards, it cedes
unchecked power to judges. Justice
Benjamin Curtiss words, in his Dred
Scott dissent, remain true to this day:
abortion law to the democratic process.
> Elitist values. Judicial activism is not
anti-democratic in a haphazard way.
Instead, it is part of a concerted effort
to impose the values of the intellectual
elite on the average American. When
the Supreme Court, in Romer v. Evans
(1996), struck down a Colorado ballot
initiative because it supposedly evinced
animosity towards homosexuals,
Justice Scalia remarked in dissent that
new rights, you may not be able to find
any support in the myriad of domestic
sources of law. At best, the reliance on
international law fuels judicial activism.
At worst, it undermines American
sovereignty. But thats apparently a plus
for Justice Ruth Bader Ginsburg, who
has expressed a hope that our nation
will discard its Lone Ranger approach
to interpreting the U.S. Constitution.
Does that include looking to the law

32 TOWNHALL August 2008

 Judicial Activism !

VICTIMS OF ACTIVISM
Lest we lose sight of judicial activisms
threats, consider these examples:

AN 8-YEAR-OLD GIRL was raped by her

stepfather. Police found her bleeding
profusely. A laceration to the wall of her
vagina had separated her cervix, causing
her rectum to protrude into her vaginal
cavity. Emergency surgery was required
to save her life.
Her stepfather, Patrick Kennedy, was
sentenced to death under a Louisiana
Left: The makeup of the U.S. Supreme Court, currently comprised of (l-r) Anthony Kennedy, Stephen law permitting capital punishment for
Breyer, John Paul Stevens, Clarence Thomas, Chief Justice John Roberts, Ruth Bader Ginsburg, Antonin the rape of a child under 12. Because she
Scalia, Samuel Alito and David Souter, will likely be heavily impacted by the next president. Either John
survived, the Supreme Court (Kennedy
McCain or Barack Obama may well have the opportunity to fill several vacancies on the high court.
Above: College students rally outside the Department of Education to protest Title IX, which the U.S. v. Louisiana) vacated Kennedys death
Court of Appeals for the First Circuit said mandated gender quotas for varsity athletes, defying the ex- sentence, saying it was inconsistent with
plicit requirements of the law as it was passed. Thousands of male athletes on NCAA campuses across the evolving standards of decency that
the United States have lost their sports opportunities. mark the progress of a maturing society.
For decades to come, the girl and her
family will live with the fear that her
of the Arab nations when interpreting worked out at the state level. attacker will one day get out of jail and
the Constitutions protection of Scalia went on to compare the seek vengeance.
womens rights? political aftermath of Roe to the
> The withering of constitutional tragic consequences of Dred Scott: A PROFOUNDLY DEAF STUDENT in
amendments. The classic defense of By banishing the issue from Arizona was denied a sign-language
the living Constitution is that the the political forum that gives all interpreterprovided to other deaf
Framers could not foresee the future. participants, even the losers, the students under the Individuals with
However, the Framers, well aware of satisfaction of a fair hearing and Disabilities Education Actbecause
that limitation, provided us with a an honest fight, by continuing the he attended a Catholic high school.
democratic method of constitutional imposition of a rigid national rule In 1992, the U.S. Court of Appeals for
evolution, namely the amendment instead of allowing for regional the Ninth Circuit (Zobrest v. Catalina
process. But the amendment process, differences, the [Casey] Court merely Foothills School District) concluded that
which requires a democratic consensus prolongs and intensifies the anguish providing him with an interpreter would
at both the federal and state level, [wrought by Roe]. be a violation of the First Amendments
is such a nuisance, making it very > A circus in the Senate. The judicial Establishment Clause.
unattractive to the intellectual elite. confirmation process has become a Because his school was too religious,
Because of the availability of an easy political circus, starting with Robert the court said, the interpreter would
alternativejudicial activismthere Bork in 1987 and continuing through cause the two functions of secular
has not been a single substantive Bush appeals court nominees such as education and advancement of religious
constitutional amendment in nearly four Miguel Estrada and Bill Pryor. Nearly values or beliefs [to be] inextricably
decades. Compare that to the previous everyone bemoans the circus, but its intertwined, thus violating the wall of
100 or so years, which saw about a the inevitable result of judicial activism, separation erected by the Supreme Court.
dozen pivotal amendments, including which sanctions the politicization of However, on appeal a year later, the
the elimination of slavery and the judging while also raising the stakes in Supreme Court could not bring itself to
enfranchisement of African-Americans selecting judges who will wield nearly pretend that providing the boy with an
and women. unlimited power. interpreter threatened to establish a state
> Distorts the political process and > Hurts Americans. Lastly and most or national religion. The Court reversed
prevents compromise. Justice Scalia importantly, judicial activism is a the Ninth Circuit by a frighteningly
said it best in his dissent in Planned threat to us. The living Constitution narrow 5-4 margin, ultimately avoiding
Parenthood v. Casey. He noted, is such a philosophical, political and the travesty that one more activist on the
National politics were not plagued by jurisprudential disgrace that its easy Supreme Courtthe type Obama would
abortion protests, national abortion to overlook its greatest evilthe selectwould have created.
lobbying or abortion marches on harm done to U.S. citizens when the
Congress before Roe v. Wade was Constitution and laws that protect us THOUSANDS OF COLLEGE ATHLETES
decided. Profound disagreement existed are pushed aside with the stroke of an nationwide have lost their scholarships,
but that disagreement was being activist judges pen. their teams and their dreams because in

August 2008 TOWNHALL 33

! Judicial Activism
tk

1996 the U.S. Court of Appeals for the First

Circuit approved government-mandated THE TOWNHALL ON...
Judicial Activism
gender quotas for varsity athletes, in utter
defiance of the explicit requirements of
Title IX (Cohen v. Brown University).
As a result of this precedent-setting
decision, mens teams have been
eliminated across the countryoften
with little or no noticebecause that is The 14th Amendments guarantees of equal protection
the easiest way for colleges to comply and due process of law should mean that government
with the quota. On average, more than may interfere with a citizens economic liberty only to
50 male athletes have been eliminated promote important government interests that cannot be
on every NCAA campus.
advanced through less restrictive means. Under todays
THE WELL-BEING OF ALL AMERICANS
weak rational basis standard, courts validate virtually
is at risk when activist decisions any abridgement of economic liberty, no matter how
endanger national security. Examples tenuous the connection to even a minor public purpose.
include ACLU v. National Security Conservatives, note well: Restoring economic liberty
Agency (U.S. District Court, 2006, requires a kind of judicial activismjudges judging
reversed)striking down the Terrorist rather than merely ratifying governments caprices.
Surveillance Program in an anti-Bush
screedand Nelson v. NASAmaking it George Will
unconstitutional to require background columnist, Townhall.com
checks for many federal employees.
These types of activist courts leave the
nation more vulnerable to terrorist [The Boumediene v. Bush decision] is The Boumediene majority ... act[s]
attacks and raise the specter of counting the courts fourth rebuke to the Bush like we are no longer really at war. Our
judicial activisms victims in the millions. administration for their treatment of homeland has not suffered another
As these examples make abundantly detainees in the war on terror; however 9/11 attack for seven years, and our
clear, the threat to ourselves and our it results not from overzealous judicial military and intelligence agencies
nation posed by judicial activism is more activism by the judiciary, as some critics have killed or captured much of al
than philosophical. It menaces our lives would claim, but rather as a result Qaedas original leadership. Whats
and our dreams. Americans recognize of unconstitutional overreaching in left is on the run, due to the very
the threat, and we can fight back. On the the name of national security by the terrorism policies under judicial
national level and in the states, we can executive. attack.
say no to judicial activism by electing Cate McClure John Yoo
presidents, governors, congressmen blogger, DailyKos.com columnist, Wall Street Journal
and state legislatorsor in some states,
judges themselveswho dont believe
that a judges moral bearings should
trump those of the people.
The 2008 election looms large.
The next president may well have the
chance to fill several Supreme Court
vacancies and, if he serves eight years,
will surely appoint more than a third
of the nations federal judges. The
post-election balance in the Senate will
determine whether activist nominees
can be stopped and whether strict
constructionists can be confirmed.
Understand the problem of judicial
activism and you will understand whats
at stake this November when you go to
the polls.
Curt Levey is executive director of the Committee
for Justice, which promotes the rule of law and
judicial nominees committed to protecting it.

34 TOWNHALL August 2008