Monday, May 17, 2010

Obama, The Supreme Court and 'Activism'

Today's New Yorker has an asinine article by Jeffrey Toobin about judicial activism, in which Toobin accuses today's conservative, Robert's court of being guilty of "judicial activism." He asserts that while conservative justices claim that they are in favor of judicial restraint, their actions say otherwise, and proceeds to list some decisions where the conservative court "actively" shot down unconstitutional laws. To what authority does he turn to in order to define "judicial activism"? Barack Obama, the 'law professor' of course.

A few weeks ago, on Air Force One, Obama, a former law professor, gave a useful definition of the term, saying that “an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically.” This is, indeed, what the Roberts Court is doing.

Never mind consulting any actual legal experts or, say, the conservative justices on the Supreme Court (i.e. true legal experts) for their definition. No, he blithely accepts Obama's definition and uses that to frame the entire debate throughout the article, as though that definition were valid. Despite the fact that Obama's definition is simply not what judicial activism is. It's not what it is, neither is it even how it has been historically understood. Obama's definition is a blatant example of outright, intentional, deceptive manipulation of language in order to render legitimate criticisms of the actual judicial activism of the left null by equivocating it with what is actually judicial restraint on the right.

Judicial activism was probably first defined by it's earliest proponent Roscoe Pound in 1908, who clearly lays out what judicial activism is. That is: the act of interpreting the law in a way that goes beyond the written letter of the law in favor of what you believe to be the "spirit" or "intent" of the law, in order to achieve some desired social result. And that's how it has been understood since, at least until recent linguistic acrobats on the left have attempted to turn it on it's head. Judicial activism is not stepping beyond the will or intent of Congress, as Obama defines it. Indeed, the entire purpose of a judiciary, as a co-equal branch of government, is to act as a check on the power of elected government officials i.e. Congress and the president! Yet Obama claims the exact opposite; that the judiciary's role is to submit to the will of Congress, not to determine whether or not the actions of Congress are Constitutional or not. It looks like someone doesn't have the most rudimentary understanding of (or perhaps respect for) the fundamental workings of our system of government. Surprise, surprise.

The trick of Obama and others on the left, being masters of both language and manipulation, is to play on the common man's fallible, but reasonable, sensibilities. In this case treating the idiom of "judicial activism" as two individual words. When you do that then virtually anything that the judiciary does actively, especially actively declaring acts of Congress unconstitutional, qualifies as "judicial activism." Thomas Sowell comments on this phenomenon is his book Intellectuals and Society (prior to Obama's recent comments), and reveals it for the cynical ploy that it is:

"Judicial activism" is an idiomatic expression whose meaning cannot be determined by the separate meanings of its words, any more than the meaning of the exclamation "Hot dog!" can be determined by referring to a separate definition of "hot" and "dog." Nevertheless, in recent times, some have attempted to redefine judicial activism by how active a judge has been in declaring laws or government actions unconstitutional. However, the Constitution itself is a limitation on the powers of Congress, as well as on the powers of the other branches of government. Judges have been considered duty-bound to invalidate legislation that goes counter to the Constitution, ever since the landmark case of Marbury v. Madison in 1803, so how often they perform that duty is not solely in their hands, but depends also on how often others do things that exceed the powers granted them by the Constitution.

Toobin goes on in the article to say that "activism" and "restraint" are just convenient words people use whenever it suits their interests. He does this by simply defining "activism" and "restraint" along the lines of action versus inaction, which is clearly misguided. It is similar to what people who take the root of the word "conservative" (conserve) do when they determine that conservatives aren't being conservatives whenever they advocate some change, for change is the opposite of conservation. While this exhibits great mastery of the OED, it betrays either complete ignorance, or cynical manipulation, of the nuances of language. Specifically with regard to what the word "conservative" means in a modern political context. Similarly, "judicial activism" and "judicial restraint" as concepts are not merely the sum of the definitions of those terms.

Having handily disposed of misconceptions about "judicial activism", Sowell goes on to illuminate what it actually is:

The real issue regarding judicial activism is over whether the basis of a judge's decisions is the law created by others, including the Constitution, or whether judges base their decisions on their own particular conception of "the needs of the times" or of "social justice" or of other considerations beyond the written law or legal precedents.

This is what judicial activism is, and this is what it has always been understood to be. So either our dear leader, the distinguished law professor, is unaware of this fact (which is hard to imagine), or he willfully and cynically tries to maneuver around it with "verbal virtuosity", the most potent tool of the statist. In either case it spells bad news for us, though it's much worse if it's the latter (which it most likely is). Because in that case there's no chance that this is an isolated misunderstanding of the workings of our government, rather it reveals a conscious, systematic attempt to subvert the foundations that our society rests upon.

1 comment:

  1. How do you have time during a workday to read, write and think all this? However you do it, Im impressed.