Activism

Nicholas Kristof discusses judicial activism in his latest piece for the NYT. (I would link, but the Times has decided its editorialists are so valuable you have to pay to read them online. Good luck with that.)

He admits that a "fundamental mistake[ ]" liberals made after WWII was going to the courts to seek social progress, rather than politicians. He lists some victories, including Brown, of course, and Engel, Gideon, Cohen, Roe, etc. Moreover, he implies these are cases of judicial activism.

Are they? Certainly not all. The Bill of Rights, for example, was written to protect the minority from the majority. The rights of the accused, or of those who say highly controversial things, will not easily be protected by legislators. In such cases, you need the courts to rein in overreaching by politicians, not the other way around.

Now Kristof fears that not only will the courts alienate the public (always a fear, even if you feel justified in going against the majority), but that conservatives will start practicing judicial activism. He notes Justice Thomas is far more likely to invalidate laws than Breyer or Ginsburg. And, as he puts it, "a growing number on the left are questioning the traditional idea of using courts to achieve a more liberal society."

I'm not surprised, since they're essentially one vote away from losing almost every case. There's more than a faint smell of hypocrisy here, since liberals had a good run, but now that things are turning (or have turned), want to change the rules. Predictably, Kristof tries to twist this into an argument against the Republicans--you said you opposed judicial activism and now we're gonna hold you to it.

But this misses the bigger question. One person's activism is another persons fealty to the law. Let's say you're a Justice who believes favoring someone due to skin color is illegal. Unfortunately, due to previous cases you feel were wrongly decided, many people not only feel it's acceptable, but required. While you should try to keep an open mind, if you don't accept the precedent, what are you to do but invalidate every law, program and regulation (and there are many) that come before you in this area? Far from being an activist, you're just trying to set things aright.

P.S. One of the glories of the civil rights movement in the decades following WWII was that, at its best, they believed in changing everyone's minds, not just a few judges. While they used the courts, they were also effective in getting major laws passed, as well as touching the hearts of more than a few Americans.