Exposing the myth of so-called activist judges

There’s been tons of commentary on Citizens United v. Federal Election Commission, in which the Supreme Court said the government can’t restrict corporations from spending money to support or oppose individual candidates in elections. Yet there’s been meager discussion on one issue the decision raises — judicial activism.

For years we’ve heard the GOP rallying cry that Democrats appoint activist judges. What is an activist judge? Here’s what the 2008 Republican platform said: “Judicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public.” You don’t have to look much further than South Dakota’s own U.S. Sen. John Thune to find someone who loves to invoke that mantra.

He has a page on his website about the “issue” of judicial nominations, where he says, “I believe that [judicial] nominees should abide by and apply the rule of law, instead of becoming activist judges who try and create law.” When he voted to confirm U.S. Supreme Court Chief Justice John Roberts, a part of the Citizens United majority, he said that, “most importantly, [Roberts] is committed to applying the law as it is written, not according to his own opinions or philosophies.” In contrast, when he voted against Justice Sonia Sotomayor, who was in the minority in Citizens United, Thune did so in part because she didn’t appear to decide cases “based on precedent and fidelity to the law.”

Thus, Citizens United presents an intriguing juxtaposition. The five justices who voted to invalidate “the law as it is written” and to overrule prior precedent are all Republican appointees. Three of the four who felt stare decisis — the doctrine that courts will follow principles of law laid down in previous cases — mandated the opposite result were appointed by Democrat presidents. Not surprisingly, stare decisis was one of the battlegrounds in the Court. “The only relevant thing that has changed since [the overruled decisions] is the composition of this Court,” said Justice John Paul Stevens in dissent joined by Justices Ginsburg, Breyer and Sotomayor. Chief Justice Roberts, in turn, wrote a concurring opinion “to address the important principles of judicial restraint and stare decisis implicated in this case,” evidently wanting to show his court is not an activist court.

Despite how well the decision may fit the GOP’s “judicial activism” box, I haven’t seen Thune, GOP chairman Michael Steele or the state Republican Party decrying an “activist” Supreme Court. That reinforces the fact talk about activist judges is just so much hooey trotted out or ignored by politicians depending on who decided what issue. The term misrepresents the role of the judiciary. Even when a trial judge rules on the admissibility of evidence, he or she is “making law” for that particular case. The higher you go in the judicial hierarchy, the broader the impact of a ruling.

This doesn’t mean the law is immune from a judge’s legal outlook. Yet with rare exceptions, those views are reflected by the interpretive methodology upon which they rely (such as the originalism v. living Constitution debate in constitutional interpretation). So, the next time a politician or political party complains about activist judges, you’re simply hearing an epithet used by the addlebrained for a ruling they don’t like. Ignore that veneer and find out what reasoning led the court to its result. At least then any disagreement is based on reason, not artifice.

---

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule.

Marbury v. Madison (1803)