The ‘Activist’ Court

OK. I am not, nor have I ever been, a lawyer. I took Constitutional Law in college just a few short years ago — 40, maybe — and I don’t devour Supreme Court cases, judiciously reading the footnotes and the footnotes to the footnotes.

So, you ask, why do I feel compelled to comment on the latest Ricci case? I am not going to discuss Title VII or the lower-court rulings or the effect on Judge Sotomayor’s appointment to the Supreme Court. Rather, I have another angle.

My point is that I have continuously found the attacks on “liberal activist judges” to be largely unfounded and hypocritical. The argument that conservatives have been making for years that they “interpret” the law and liberals “change it” is totally off base.

What does “activist” mean, anyway? Does it mean that, as in the Ricci case, the five members believe that they need to change the law, change the way Title VII is interpreted and enforced at the local level? Does it mean that justices shall reject notions of separation of powers and favor executive power, as Dick Cheney certainly held post-Sept. 11? Does it mean that civil liberties as guaranteed by the Constitution should be overlooked or even overturned because of the al Qaeda threat?

My point is that the conservative view is really quite “activist” — this certainly isn’t a passive crowd, this gang of four on the court. They have shown not a “strict constructionist,” or even a conservative, philosophy, but rather quite a radical one.

The real point is that this phrase was used to attack the Warren court and many justices since, when the real goal was to tear down people who did not adhere to a strict philosophy. As used these past two decades, it had nothing to do with judicial temperament or approach. It had nothing to do with activism per se but rather a kind of activism. In that sense, this has been a false distinction that many have made from the very beginning.