I think Chris’ summary of the main issue presented in this book is very insightful. The Supreme Court has become the battlefield for the ideological battles being fought between factions — the Democrats and Republicans, the liberals and the conservatives, those who want religion in public places and those who think religion has no place there, those who think government should regulate or eliminate abortion and those who think differently. I could go on and on.
For this reason confirmation hearings are no longer about whether someone has the qualifications to serve on the Court, but rather an attempt to discern how he or she will vote on particular divisive issues, or at a minimum to obtain the nominee’s assurance that he or she will not engage in “activism” on the Court. We have just seen this played out during the Sotomayor hearings.
Conservatives for years have complained about the more liberal justices engaging in “judicial activism” – contending that the Court is legislating new law instead of merely interpreting laws enacted by legislators. But it is obvious to anyone who has ever read through state and federal statutes that these laws cannot possibly cover every situation. This is equally true of the Constitution. Therefore “the law” is changing constantly because courts have no choice but to decide which of two opposing interpretations in a given case is the right interpretation. Nothing new there.
It is in the realm of constitutional interpretation that the conservative factions have been most critical. As Mr. Toobin points out, “judicial activism” has become a rallying cry for conservative factions in their attempt to gain control of the Supreme Court.
But judicial activism is not limited to “liberal” judges. In the Ricci case I mentioned previously (involving a challenge by white firemen when New Haven threw out examination results that appeared to the City to be unfair to minorities) the conservative justices with the help of Justice Kennedy created a new (and more rigorous) test in this area of the law, making it more difficult for minorities to challenge actions by employers. As Justice Ginsberg points out in her dissent, this decision ignores prior Supreme Court precedent – which qualifies squarely as judicial activism.
There is no doubt in my mind that if the Supreme Court had a fifth justice with the conservative bent of Justices Roberts, Alito, Scalia and Thomas, we would see judicial activism supreme. So I think it is fair to say that important decisions of the Court can almost always be deemed judicial activism by one side or the other.
“The Nine” points out the many shapes judicial activism takes. Justice Scalia, for example, would interpret the Constitution divining the “original intent” of the framers in the 1770’s, and would not hesitate to overturn prior decisions that he feels did not meet this standard. I was surprised to learn that “original intent” was actually not a judicial concept, but was first discussed by President Reagan’s attorney general, Edwin Meese III during Reagan’s second term as a way to contain more liberal readings of the Constitution.
A question that comes to mind is whether as a democracy we are better off with a Supreme Court composed of judges that take radically opposing views or with a more homogeneous centrist Court.
