Editors' note: Al Hausman is an Economics student at the New College of Florida in Sarasota, Fl. He works as a policy analyst for the United States' Government and is dedicated to improving the quality of public debates in this country. His academic interests include comparative legal systems and international trade regimes.
I started watching American politics pretty closely about ten years ago. It's a somewhat awkward and embarrassing confession, but the drama following the 2000 Presidential elections got me hook, line, and sinker. As I watched, I gradually grew more and more disinterested with the whole process. The same attacks on either Republicans or Democrats kept being hurled at the other with undying fervor. And every time the actors changed the same debate would begin anew, only with more intensity. The Judiciary, however, never suffered from those drawbacks and kept my attention. In fact, the only time I ever got bored of judicial news was when a new Supreme Court Justice needed nominating and the Executive and Congress got involved.
Even though I get frustrated that no one on the Judiciary Committee can find it within themselves to properly pronounce stare decisis and everyone wants to know what a nominee thinks about Roe v Wade; I lose it whenever I hear someone complaining about judicial activism, especially when it is obvious the speaker doesn't have the slightest clue about what judicial activism means. For the record, I am a Republican. I supported the nomination and confirmation of both Chief Justice John Roberts and Justice Samuel Alito. I also support the nomination and confirmation of Judge Sonia Sotomayor. I believe that the Senate should limit itself to ensuring the qualifications of the President's nominee; and, if satisfied, consent. Unfortunately, the Senate and the public have become infatuated with the notion of an "activist judge", so I thought I might try to shed a little light on the subject.
I think a brief overview of the relationship among the three branches of government might help our understanding move forward a bit. At the most elementary level: Congress passes laws that the Executive carries out. If there is a question as to what a law actually says or how it should be applied, the Courts settle the matter; if the Congress believes the Courts misinterpreted the law or wants to change it, the Congress can certainly pass a new law or attempt to amend the Constitution. Of course, our entire government cannot possibly be encapsulated so succinctly; but diving only one level of analysis deeper will provide us with the theoretical basis for understanding what judicial policy is and how it is created.
Every time Congress passes a law, hundreds of details need to be filled in before the law can take full effect. A law requiring an environmental impact study to be performed before any new construction can take place on federal lands, for instance, also needs to dictate what impacts are going to be studied and what thresholds a project needs to meet before it is allowed to proceed. Congress moves slowly enough as it is; and getting 535 Congresspeople to agree on that level of detail for every piece of legislation would require massive time commitments, if possible at all. This detail work is left up to the responsible Executive Agency (probably the Environmental Protection Agency in our example), and these details are called administrative code. Like bills passed by Congress, administrative code has the force of law and can be challenged in the Courts. The Courts do not have the authority to change administrative code - or the law - but they can limit or expand the applicability of certain provisions or repeal them altogether. This authority to modify the way in which administrative code - and laws - is applied is judicial policy. I cannot imagine how our government could actually function without these procedures and every time I ask an opponent of "judicial activism" what they think, neither can they. They also seem not to understand that we are talking about judicial policy until I tell them; tending to have wild, scary notions of what "judicial activism" actually is, and I join everybody in opposition to those.
Opponents of "judicial activism" fall into two general groups. The first group of opponents thinks that some judges believe they have the authority to create new rules and laws, usurping the Congress's Constitutional prerogative for law-making and the public's right to have their laws written by publicly-accountable officials. However, the Courts can only review laws; limiting or repealing them, not changing them - and certainly not issuing new laws. The second group recognizes that the Courts do not create laws, but believes that some Judges abuse their powers of review to advance unwanted social and legal changes on a hesitant populace. The other day I was talking with good friend who falls in this group and he mentioned that the California Supreme Court declaring Prop. 8 to be not retroactive is a perfect example of judicial activism. As a rejoinder, I pointed out that Prop. 8 had no language referring to the 18,000 or so gay marriages that had already taken place; and that all seven of the Justices (including the six who upheld the Constitutionality of Prop. 8) unanimously decided that the extant marriages would continue to exist, a plain-text reading of the newly altered California Constitution.
I disagree with the California Supreme Court Justices' decision to limit themselves to the state constitution in their consideration of Prop. 8; California's status as a political sub-division, authorized under the United States' Constitution, could have conceivably enabled the justices to rule Prop. 8 unconstitutional as a violation of the equal protection clause of the fourteenth amendment. I have no conclusive evidence, but I think that the extent to which someone feels that a judge is "activist" may be a function of how ideologically disparate they are; the more a person disagrees with a judge's conclusions, the more "activist" that judge is. Harvard Law Professor Martha Minnow once said, "there is no objective stance but only a series of perspectives," and it is the different perspectives of judges and legal scholars that create debates and disagreements, not a fictitious "activism" where judges step over the bounds of their constitutional authority. I had hoped that this time it would be different, but the confirmation of Judge Sonia Sotomayor looks to hinge on the extent to which she is an "activist judge".