Judicial Activism (11/22/2005)

President Bush’s recent nominations to the U.S. Supreme Court have ignited a firestorm about the nominees’ qualifications, background, ideology and inclination toward judicial activism.  With each nomination, the rules change.  When Bush nominated John Roberts, he said Roberts’ religion should not matter.  A month later, after he’d picked Harriet Miers, he said her religion was important.  Right-wing groups raged against the Miers nomination; they now support Samuel Alito’s nomination and want a hostile, full-scale fight over it.

Earlier this year, Senators said they had worked out a compromise on Supreme Court nominations.  The right wing had wanted straight up or down votes, but Democrats warned they might filibuster.  Then Republican Senate leader Bill Frist threatened to eliminate the Senate’s filibuster provision.  But moderate Republicans were concerned about overturning the long-term precedent on filibuster.  A so-called compromise was reached when 14 Senators, from both parties, agreed not to use a filibuster unless there were “extraordinary circumstances.”   So Roberts got approved without much hoopla and Miers withdrew.  But Alito’s nomination may put a spotlight on Senate process and the meaning of judicial activism.

Right-wingers disdain those they perceive as activist judges.  In August, they organized two so-called Justice Sundays, using church-based rallies (that in itself is disturbing), to rail against such judges.  James Dobson, founder of Focus on the Family, called the judiciary “unelected, unaccountable and arrogant.”  Republican Congressman Tom Delay, the former majority leader who recently had to step down because of indictments for money laundering and conspiracy, questioned the Supreme Court’s power to strike down laws passed by the Congress, even if they are not constitutional. William Donohue, president of the Catholic League for Religious and Civil Rights, claimed the Supreme Court should be able to overturn a Congressional law only by a unanimous vote.

Yale Law Professor Paul Gewirtz and Yale law graduate Chad Golder, in a July 2nd New York Times article, point out that “judicial activism” is rarely defined, and often simply means the judge has made decisions with which the critic disagrees.  Their research shows that justices vary widely in their tendency to strike down Congressional laws.   For example, right-wing Justice Clarence Thomas, appointed by President George H. W. Bush, has been the most likely to invalidate those laws, voting nearly 66% of the time to do so.  Liberal Justice Stephen Breyer, appointed by President Bill Clinton, has been the least inclined to invalidate Congressional laws, voting only 28% of the time to do so.  The percentage of times each Justice voted to strike down a law is:  Clarence Thomas 66%, Anthony Kennedy 64%, Antonin Scalia 56%, William Rehnquist and Sandra Day O’Connor 47%, David Souter 42%, John Paul Stevens and Ruth Bader Ginsburg 39%, and Stephen Breyer 28%.  The conclusion:  those justices often considered more liberal vote the least frequently to overturn Congressional statutes, while those often labeled conservative vote more frequently to do so.  The authors caution that being activist is not in itself negative but does illustrate the varying degrees to which justices actually intervene in the democratic work of Congress.

As the Alito nomination moves forward, what are the rules this time?  Many Republicans who supported the Senate filibuster during President Clinton’s term now oppose it during the Bush term.  Does religion matter, or only when it suits a particular agenda?  For example, should Alito be expected to rule against abortion and birth control because of his church’s opposition?  If so, will he oppose war and the death penalty because of his church’s opposition?  Will the political party in power hold our judges and our constitutional protections hostage?  If so, what will happen to our democracy?

- Judith Kohler

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