Do We Expect Judicial Activisim?

The political screeching about judicial activism, soon to become a daily occurrence as the the nomination to replace Justice O'Connor accelerates, may be of our own making. In this post from the Volokh Conspiracy, Todd Zywicki quotes a potential nominee, Judge Edith Jones regarding the judicial confirmation process. One interesting part of her comments is this:

For much of the twentieth century, mandarins of the law viewed the courts as agents of social change and the law as contingent, evolutionary, and ultimately subservient to political expediency. Federal judges long ago caught on to this heightened view of their power, and it was inevitable that state judges would do the same. (emphasis added).

Many of the right's issues with judges is they believe the courts are making policy--leftist policy. Much of the left's issues with judges rests on teh belief that conservative judges don't care about those wronged by the law. In truth both sides of the political spectrum have invited judges to make law from the bench.

Democrats have, since the after the New Deal, routinely turned to the courts to vindicate "rights" they could not get the political branches to create. By turning to the courts the left has asked judges to make law in their favor. The problem the left then experiences occures when the courts either fail to take up the case on a procedural matter or decide that the right asserted by leftist plaintiffs does not exist either in the constitution or in a statute. By relying on the courts to find rights, the left abandoned any effort to change the law in the political process, which leads to other problems outside the scope of this post.

Republicans find fault with judges who look for and/or find rights in legislation that was passed or in some interpretation of the Constitution. The problem for the right rests not on reliance on judges but on the belief that judges will understand what is written on the page. Conservatives want judges to enforce the law as written. But, poorly written law, in the form of vague legislation or poorly written regulation, leaves much to the discretion of hte court to assign a definition to words on the page. Thus, when a case comes to the court where the court must decide which definition or interpretation to give to a word or phrase, the right calls any decision against their beliefs to be legislating from teh bench--but the court MUST make a decision because our system of justice requires a winner in each case.

Either by omission or commission, both sides of the political spectrum have come to expect judicial activism, but only call it judicial activism when the decision goes the wrong way. Judges can only work with cases and laws presented to them. When a Democratic senator calls a judge an extremist, or when a Republican senator does the same, both would do well to look into the mirror and ask themselves, who is the root cause of our problem? The judge? or Me?

Returning to Judge Jones comments, courts can be agents of social change (witness Brown v. Board), but the capacity for courts to be agents of social change is very small and reactive at best. but by coming to expect judicial activism (what ever definition you attach to it) you run the risk of decisions contrary to your own intent. Both sides of the political spectrum would do well to examine their own motivations in the battle over judicial confirmations.

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