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Since President Barack Obama nominated Judge Sonia Sotomayor for the U.S. Supreme Court, many conservatives have expectedly criticized her as being unworthy. Aside from preposterous accusations that she’s a racist, she’s been consistently attacked as a “judicial activist.” Conservatives often argue that liberal judges are guilty of being such; the rationale is that liberal judges are far more likely to be make decisions based on their emotions than by the letter of the law. This argument has gained even more steam regarding Sotomayor simply because she was appointed by the current president, who said he would seek someone with a lot of “empathy” to fill a seat on the High Court.
If not driven by their bleeding hearts, liberals are alternatively charged with being driven by a political agenda, by their ideology rather than their duty to faithfully interpret the law. To put it simply, the argument is that whatever their motivation, liberal judges sometimes “make law” rather than just interpreting it. These arguments are so pervasive that even I, a diehard liberal, believed that they were probably true for a long time.
However, I wasn’t convinced that this was necessarily a bad thing, as it’s not only the job of judges to interpret the law, but to enforce justice. It is for this reason that judges have so much discretion on things such as sentencing, for example. In a criminal case, after a guilty verdict, a judge is assigned the duty of looking at the particular facts of each case and, within statutory limits, crafting a sentence that effects justice. In some cases, this might mean the maximum sentence; in some cases it might mean a suspended sentence, just a fine or even “time served.”
But after spending a year in law school, I found out it was all a lie: Liberals are no more “activist” at the bench than conservatives. On the contrary, some of the most blatant examples of judges being activist or “making law” have been at the hands of right-wing jurists.
One great example is the Supreme Court’s jurisprudence on the “Takings Clause” of the Constitution’s Fifth Amendment, which states that private property shall not “be taken for public use, without just compensation.” Conservatives, particularly libertarian-conservatives, are obsessed with private property rights, and have always pushed for a broad interpretation of this clause. In the 80’ and 90s, they got what they wanted thanks to a conservative activist majority on the Supreme Court.
Consider Lucas v. South Carolina Coastal Council. The plaintiff in that case was suing over a local land use regulation that effectively deprived him of his ability to erect homes on his beachfront property. After losing in the South Carolina Supreme Court, the U.S. Supreme Court agreed with the land owner, basically holding that “regulation that deprives an owner of all economically beneficial uses of land constitutes a taking.” My property professor, if my memory serves me right, actually called this the “most activist opinion” he’s ever read. (And this particular professor hardly strikes me as a big liberal.)
The most influential right-wing judge of our time, Antonin Scalia, wrote the opinion, and actually admitted therein that it used to be “generally thought that the Takings Clause reached only a ‘direct appropriation’ of property or the ‘practical ouster of the owner’s possession,’” and that “early constitutional theorists did not believe that the Takings Clause embraced regulation of property at all.” But Scalia and the Court’s other conservative justices ignored the commonly understood, literal meaning of the Fifth Amendment and instead decided to use the gavel to deal a blow to big-government liberals’ future ability to freely enact environmental regulations, which they firmly ideologically oppose, believing that regulations are an infringement on individual liberty.
I don’t have the great legal mind of my professor, so maybe I’m wrong, but I’ve personally always thought that the most activist opinion I’ve ever read was Bush v. Gore, the ruling that literally installed George W. Bush — the guy who lost the popular vote nation-wide and probably in Florida, too — in the White House. Interestingly, this opinion might have been the one that set the outgoing Justice David Souter on his path back home to New Hampshire. Journalist Jeffrey Toobin wrote this about Souter in “The Nine”: “He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.”
First-year law students often first encounter Bush v. Gore in an interesting place: in the section on “political questions” in their Constitutional Law text. The “political question” doctrine is a prudential rule of U.S. federal courts, mandating that the judiciary generally shouldn’t intervene in the affairs of the political branches. Clearly, running elections is one of these areas. Law textbooks thus like to ask (at least mine did) why Bush v. Gore was not held to be a “political question.” The answer is obvious to me: Justices Scalia, Clarence Thomas, William Rehnquist, Sandra Day O’Connor and Anthony Kennedy, who voted to end the recount, were all right-wing Republican appointees who saw a chance to get their guy in power. Justice O’Connor, a Reagan appointee, even said after the decision that an Al Gore victory would have jeopordized her retirement plans (because she wanted to be replaced by another right-winger, and with the appointment of Samuel Alito, she was).
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