Tuesday, April 3, 2012

Obama's profound ignorance...

...or willful dishonesty.

Speaking to the press yesterday, President Obama opined on the constitutionality--or lack thereof--of the Affordable Care Act. In doing so, he called upon the idea of judicial activism in support of the Act's legitimacy. As readers might recall, I addressed this silly argument a few weeks ago when it was offered by Michael Tomasky at the Daily Beast. Obama's actual words, in this regard:

There's a great deal to criticize here, apart from the bit on judicial activism, and I'll address some of it in a future post, have no fear. So, let's look at what the "constitutional scholar" said about judicial activism:
I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step.
Who, exactly, has he been listening to? Which conservative commentators have been saying that the "biggest problem on the bench" was the overturning of a law? The question is rhetorical, of course, since none of them have been saying any such thing. Like Tomasky, Obama apparently has no clue what the term judicial activism actually means, what behavior--by a court--constitutes judicial activism (or it's twin, "legislating from the bench").

In my previous piece, I explained what legislating from the bench was, with reference to the Kelo decision. Rather than simply quoting myself, however, I'll explain judicial activism in a different way, in what I hope is a simple way--though far more thorough--for the benefit of the people who just can't seem to come to terms with the idea.

The President does make one valid point, insofar as judicial restraint is the opposite of judicial activism, but that's about it. Everything else he says is completely off the mark.

To understand the concept of judicial activism, one must first understand the basic line dividing the legislature and the judiciary. The legislature makes laws, not the judiciary. The judiciary--the courts--applies those laws (and the Constitution) in cases that come before it. So, if a case comes before a judge, the judge makes sure the proper laws are being applied and--if required--issues a ruling.

Consider, however, a case where the laws that apply are not entirely clear. The court is charged with applying the law properly, and to that end it must necessarily make some choices. There are thus two basic ways to go: to (1) use restraint and limit the application of laws, or to (2) assume intent beyond what is given for various laws (or rights) and apply them in a case they were not expressly designed for.

Clearly, (1) is the road of the strict constructionist, the proponent of limited government, the restrained judge. But note that (2) has its advantages. It is entirely possible for injustice to occur under the law, specifically because every possible situation has not been--and can never be--fully anticipated by the legislature. Consider women's rights. A very narrow reading of the laws and the Constitution can effectively limit those rights, in ways that the great majority would consider to be unjust. But by making some assumptions, by allowing for some latitude in interpretation, some of what is unjust can be effectively eliminated, without a need for the legislature to pass new laws.

Many people say the concept of judicial activism is too complicated, too difficult to understand, too hard to pin down, but it's really not. Because look at the obvious conclusion that can be drawn from my description: judicial activism reflects a goal-oriented approach, it is a means of serving an agenda. In the case of  women's rights, the goal is equality before the law for women the in all things, period. And frankly, that's a very noble goal. The reason for such a pursuit is simple: the reality of having lawmakers unable to keep up with a society that is becoming more egalitarian.

And in that regard, judicial activism can be--and once was, on occasion--a badge of honor. Alfred Scanlan--a noted constitutional and civil rights lawyer and judge--said the following about Supreme Court Justice Frank Murphy in 1950:
We sanction the decisions of the rule of the majority when they come from the duly and democratically elected representatives of the people. When that majority will tries to undercut or impair the basic principles upon which it rests, namely, the free play of opposing views, practices, parties, etc., then the Court, as guardian of the Bill of Rights, must step in. We will not tolerate democracy to be destroyed in its own name. Justice Murphy grasped that. The label of "judicial activist" is unmistakably a compliment in this context, reflecting a belief that one ought to aggressively employ judicial review to safeguard the rights upon which democracy is predicated. Scholars sometimes referred to Justices Brandeis and Cardozo in much the same way. For example, a 1949 article observed, "Mr. Brandeis was a pragmatic judicial activist who saw in the courts a powerful instrument to be grasped by the people in ameliorating social and economic conditions."
But regardless, the point is that judicial activism is about manipulating the law to serve one's own agenda, be it noble or ignoble. Keenan Kmiec--in the above article--describes Arthur Schlesinger Jr.'s view of the concept, as expressed in a Forbes article in 1947:
Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutlege as the "Judicial Activists" and Justices Frankfurter, Jackson, and Burton as the "Champions of Self Restraint." Justice Reed and Chief Justice Vinson comprised a middle group.  
By 1947, none of the justices openly questioned the constitutionality of the New Deal. Instead, the Court split over the interpretation of legislation and "the proper function of the judiciary in a democracy." Schlesinger describes the competing approaches:
This conflict may be described in several ways. The Black-Douglas group believes that the Supreme Court can play an affirmative role in promoting the social welfare; the Frankfurter-Jackson group advocates a policy of judicial self-restraint. One group is more concerned with the employment of the judicial power for their own conception of the social good; the other with expanding the range of allowable judgment for legislatures, even if it means upholding conclusions they privately condemn. One group regards the Court as an instrument to achieve desired social results; the second as an instrument to permit the other branches of government to achieve the results the people want for better or worse. In brief, the Black-Douglas wing appears to be more concerned with settling particular cases in accordance with their own social preconceptions; the Frankfurter-Jackson wing with preserving the judiciary in its established but limited place in the American system.
Each side that Schlesinger portrayed in Fortune is the product of a distinct legal world-view. The Black-Douglas view has its roots in the Yale Law School, which had strong ties to both Black and Douglas. This view perceived legal reasoning as malleable, rather than scientific. As Schlesinger describes, the Yale Law School "Judicial Activist" camp believed and wrote that "[t]he resources of legal artifice, the ambiguity of precedents, the range of applicable doctrine, are all so extensive that in most cases in which there is a reasonable difference of opinion a judge can come out on either side without straining the fabric of legal logic." In short, there are no unassailable "right" answers, and policy concerns move to the forefront. "A wise judge," if he accepts this philosophy, "knows that political choice is inevitable; he makes no false pretense of objectivity and consciously exercises the judicial power with an eye to social results."
Schlesinger's Judicial Activists believe that law and politics are inseparable. They see judicial decisions as "result-oriented," because no result is foreordained. They adopt the famous Learned Hand dictum that "the words a judge must construe are 'empty vessels into which he can pour nearly anything he will."'From this perspective, the Frankfurter-Jackson ideal of judicial restraint begins to look like abdication of responsibility; "deference" to the legal status quo becomes a decision to favor the interests positioned to benefit from that status quo. According to the Judicial Activists, Schlesinger writes, "The Court cannot escape politics: therefore, let it use its political power for wholesome social purposes." Judicial self-restraint is "at best a mirage."
Schlesinger explains that the Champions of Self Restraint, on the other hand, are more skeptical of individual judges' notions of justice. To them, laws have fixed meanings, and deviation from those meanings is inappropriate, no matter which groups may benefit from the departure. As a logical matter, they claim, "[i]t is not clear that Black's solicitude for labor unions is per se more reprehensible than [Justice] Pierce Butler's, say, for *1448 railroad companies." At its heart, then, the Frankfurter-Jackson school seeks "to resist judicial supremacy, either of the right or of the left, in the name of deference to the legislative will," and rests on faith in the separation of powers and the democratic process. The Champions of Judicial Restraint, according to Schlesinger, understand the judicial role much as Justice Holmes did. "If the legislature makes mistakes, it is up to the legislature to remedy them. Any other course will sap the vigor of our democracy by encouraging legislatures in an irresponsibility based on an expectation that the courts will backstop their wild pitches."
Note what is missing from the analysis: any sort of argument that--somehow--declaring an act of Congress to be unconstitutional is judicial activism, as a matter of course. Judicial review is not even mentioned. True, Scanlon mentions it, but not as an absolute indicator, only as a tool that can be used for activism. And that's more than fair. Such use is possible, but not every use is activism.

The other problems with Schlesinger's analysis aside--like the "mirage" of judicial restraint--he has fully encapsulated the concepts of judicial activism and restraint. And in a single paragraph, at that (the third paragraph in the above quote, if this is less than clear). Look at the core of it, again:
One group is more concerned with the employment of the judicial power for their own conception of the social good; the other with expanding the range of allowable judgment for legislatures, even if it means upholding conclusions they privately condemn. One group regards the Court as an instrument to achieve desired social results; the second as an instrument to permit the other branches of government to achieve the results the people want for better or worse.
Is that not exactly right, with regard to the current make-up of the Supreme Court? Really, Thomas and Scalia stand alone, with regard to consistent positions in this regard. All of the others are prepared--on occasion--to cross the line into activism. And again, maybe they have--in their minds--very good reasons for doing so. Maybe there are injustices that cannot be remedied without activism.

Still, none of this--none of it--has any bearing on the President's remarks, which reflect a total lack of understanding of the concept of judicial activism. For again, it is unrelated to the power of judicial review (the finding of laws to be constitutional or unconstitutional). The conflation of the two is inexcusable for a serious-minded and well-schooled jurist. I can understand Tomasky's failings in this regard, but not Obama's. Thus, I am left to conclude that he's allowed his agenda to cloud his mind (because I don't think he's stupid), or that he's being deceptive and counting on the media dimwits to parrot his claims as if they were true, as if he made a valid point.

It's looking very much like the latter, in my opinion. And that's pretty damn sad.

Cheers, all.

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