"If the court makes a decision someone likes it's applauded as 'judicial statesmanship.' If not, it's called 'judicial activism.'" -- Judge Alfred Goodwin, appointed to the United States Court of Appeals for the Ninth Circuit by President Nixon in 1971.
In politics, it's hard to go wrong kissing babies, flipping pancakes and attacking "judicial activism." Nothing could be more American. The latest chapter is a two-day conference in Washington in early April, featuring court critics like Majority Leader Tom DeLay, Phyllis Schlafly, and Alan Keyes. Conference organizers call it "the beginning of a broad-based effort to save America from the judges."
Of course, courts shouldn't be immune from scrutiny. But repetition has drained any substantive meaning from the term "judicial activism." All that's left is an amorphous political mantra. The public deserves a better debate over how judges should do their job.
The term "judicial activism" came back in fashion after the U.S. Supreme Court and others declined to intervene in the Terri Schiavo case. Many of these attacks began in 2003 after the Massachusetts Supreme Judicial Court found that the state's constitution requires recognition of same-sex marriages. President Bush and lawmakers lost no time pinning the scarlet A -— activist -— on the court. "Judicial activist" is quite simply the hottest epithet around; perhaps someone will trademark it.
But is it so new? Rewind to the turn of the century: Teddy Roosevelt was so upset over decisions hostile to worker protections that he called for the recall of federal judges. President Franklin Roosevelt, in his speech justifying an attempt to pack the Supreme Court with more justices, said, "The Court has been acting not as a judicial body, but as a policy-making body. We must take action to save the Constitution from the Court."
In 1954 the U.S. Supreme Court's decision in Brown v. Board of Education triggered massive resistance to the "naked judicial power" that had begun desegregating schools. "We regard the decision of the Supreme Court in the school cases as a clear abuse of judicial power," read the 1956 "Southern Manifesto." IMPEACH EARL WARREN billboards flourished. In 1968, Richard Nixon took office promising to appoint strict constructionists.
By 1986, seven justices had been appointed by Republican presidents who had politicked against Warren Court activism. But it was the Burger Court that first protected abortion and commercial speech, legitimated busing and affirmative action, restricted sex discrimination and aid to parochial schools, and even imposed a moratorium on capital punishment.
And if judicial activism means hostility to legislation -— "the will of the people and their elected representatives," as the President puts it -— then there's more confusing news. In the first 200 years after the constitution was ratified, the Supreme Court struck down only 127 federal laws. But since 1995, a conservative court has struck down nearly 30 more, including gun-free school zones, set-asides for minority contractors, state damages for discrimination based on age or disability, civil remedies for violence against women, and citizen suits under the Endangered Species Act.
For politicians and pundits alike, that maybe the best thing of all about attacking judicial activism: no matter what really happens, you never have to stop.
For more information on "judicial activism" including additional quotes, video, and other commentary, please visit http://www.justiceatstake.org