The Judicial Activism Debate


To clear the air a bit, I’ve come out in defense of Sonia Sotomayor in previous posts. I don’t consider this to be a matter of ideological preference, but of presidential deference. I was similarly annoyed by the Samuel Alito hearings, and think then-Sen. Obama was wrong in opposing his confirmation (and John Roberts’). To me, if a nominee is qualified, doesn’t have any glaring character flaws and wouldn’t be considered radical by any reasonable onlooker, they should be confirmed, and unanimously.

But probably the bigger reason I came to her defense is this: I got swept up in a flawed argument, perpetuated by a wholly inept media. And this, of course is the judicial activism debate.

What makes someone activist or a strict constructionist? In common parlance, a strict constructionist (read: conservative) judge should be one that adheres to the Constitution to the letter, and doesn’t read too much into interpretations of intent. A judicial activist (read: liberal) is one who advocates interpreting how the Constitution’s wording fits with contemporary values. Activists are often thought of as using broader interpretations to create policy; see: Roe v. Wade, the use of the Interstate Commerce Clause, Miranda rights, etc.

The problem with debating these labels — which we do each and every time a nomination pops up — is that the debate always devolves into a fruitless argument about interpretation, which neither side seems able to articulate clearly. When politics get involved, the nuances are lost, and we’re faced with black and white terms that rarely, if ever, define black and white viewpoints.

Conservatives (and I’m consciously switching from constructionist/activist to conservative/liberal here) don’t like Sotomayor’s insistence that personal experience means something to a judge. Yet the constructionist Alito admitted as much in his own confirmation hearings when he talked about his upbringing.

Liberals seem incapable of defending themselves against the notion that the Constitution is an objective document, yet could easily be pointing out how interpreting the words of the Constitution — using strictly framer’s intent when in doubt — still requires a degree of subjectivity.

That whole Equal Protection Clause? Could easily be read as the Constitution’s version of “all men are created equal.” But certainly when Thomas Jefferson wrote “all men,” he didn’t mean black men, whom the Equal Protection Clause was designed to help.

So what would a strict constructionist have said if the Jeffersonian “all men are created equal” had made it into the Constitution? The words clash mightily with the notion of owning and abusing black people, but what if you didn’t deem a black man to be a “person?” So today’s strict constructionist would say black men are included in that, but yesterday’s might’ve said otherwise. Interpretations of words change over time, based on values, no matter one’s judicial philosophy. The strict constructionist, like as not, comes into the Court with a certain outlook which frames their view of law. And there’s where the real difference lies.

The debate should rather be framed as a matter of principle, because as a matter of practicality both camps utilize their respective worldviews to interpret law. How many decisions end up 5-4, with conservative and liberal appointees voting their respective ways? You can’t tell me that every single case comes down to “activist” vs. “constructionist.”

But these labels are useful. It’s just the debate has been muddled into whether judges should be able to interpret — a thing which would be impossible to avoid.

It would be nice to have the argument of whether we want the the preferred judge’s outlook to be based on framer’s intent or contemporary values. In either case the judge’s own background will come into play occasionally. But which judicial principle they choose to follow more is a lot more instructive on how they’ll rule than whether or not they think their life experiences inform their decisions. We’re all informed by our life experience. Don’t think Supreme Court justices are, or should be, any different.

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About the Author

Brian Eason is a University of Missouri graduate with bachelor degrees in Journalism and Political Science. He has covered Congressional elections and local government for the Columbia Missourian and worked as a general assignment reporter for the State Journal-Register in Springfield, IL. Brian has also had articles published in Roll Call.

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