The Jury’s Out on Judicial Activism

It’s clear that we seriously lack activism from individuals who should put forth the effort. But what about individuals who are activists but perhaps shouldn’t be? Welcome to the Supreme Court.

Adonal Foyle wants to reform campaign finance! Look at that face!

Peter Dreier and Kelly Candaele angrily denounce the lack of political activism among highly publicized sports figures in their 2004 The Nation article. Despite a few notable exceptions, like Tommie Smith and John Carlos and Adonal Foyle, and a few recent examples, including five St. Louis Rams players and Chicago Bulls player Derrick Rose, athletes are heavily pressured to stay out of political conversation for a litany of reasons: conflicts with corporate sponsorship, team ownership, etc.

But while athletes that retain a special standing in American society to bring attention to political issues refuse to play the political game, America’s most powerful group of nine is remarkably willing to play (except for one, of course – if you didn’t know, Justice Clarence Thomas has not asked a single question since 2006 and has only talked once – to crack a terrible joke at Yale).

The Supreme Court is not well known. Only one in three Americans can name a single Justice. Only Ruth Bader Ginsburg (or should I say, Notorious R.B.G.?) has reached celebrity status, albeit among the nerdiest of feminists (including myself). But the Supreme Court, cloaked in nine black robes, a singular jabot, and de facto anonymity, often assumes the role of most powerful body in land. They’re the reason women can get abortions. They’re the reason schools aren’t segregated. They’re the reason the Affordable Care Act still exists (well, perhaps not for long). But this has all come at a cost: the accusation that the Justices who ruled these ways are being too activist.

Sotomayor! Breyer! Alito! Kagan! Ginsburg! Kennedy! Roberts! Scalia! Thomas! The Magical Gang of Nine and some of my personal heroes. Who cares if only four of them can competently smile?

Many interpret the role of Supreme Court Justices to be one of strict construction; that is, Supreme Court Justices’ role is to interpret the Constitution strictly, to determine the original meaning of the words. In its logical extreme, personified by Antonin Scalia (shameless plug, I know), strict constructionist, or originalist, Justices read the Constitution to determine its literal meaning. This can be a problem quite quickly, as the Constitution is fraught with gendered language and laws are filled with mistakes, such as the high-profile misuse of the word “state” that may or may not single-handedly destroy the Affordable Care Act.

But while the activist accusation is almost always directed at the liberals on the Court, conservatives are far from immune. The high-profile Citizens United and Hobby Lobby decisions, which expanded personhood rights to corporations in the reams of free speech (and thus, somehow, spending) and freedom of religion, respectively, were notoriously activist. I’m sure those founders didn’t think the corporations of the 1780s were people. They didn’t even grant all personhood rights to women, non-property owning individuals, or people of color.

The jury is out (pun intentional) on whether judicial activism is good, though. While we can thank some sort of “activism” for Brown v. Board and countless other definitively good decisions, we must remember that the role of the Supreme Court is to call balls and strikes, not to play the game. Legislation is for the legislative branch and increasingly the executive. The Supreme Court is for interpretation. Granted, Congress often gets it wrong, but that doesn’t mean that the Supreme Court should get to correct their mistakes (or vice versa: reverse Congress’s actions for policies they succeed on but justices disagree with). So goes the conventional view of SCOTUS. In the words of Justice Anthony Kennedy, “An activist court is a court that makes a decision you don’t like.”

Not a lot of folks on the interwebs like Scalia

But here’s the problem: originalist interpretation of the Constitution favors conservatives because it’s, well, inherently conservative. It looks back in the past to conserve the original intent of the Constitution and so it is inherently activist, just in the opposite way than how we normally conceive of activism, as being more liberal. In other words, Scalia wants to party like it’s 1789. And in 1789, we didn’t get much right; the founders’ epistemology was far from accurate. Like I said before, the Constitution is fraught with gendered language. The Constitution didn’t even protect citizens from bill of rights violations by the states (that started after the 14th Amendment, in 1865, in a process called incorporation). Did you know that it’s still legal for your state to force you to quarter soldiers? It’s true!

It also doesn’t help that most Justices on the Court are white males (or, in Clarence Thomas’s case, rule like one). That means that in order to accommodate the reality of American society, not just the perverted alternate reality that white male Justices have created for themselves, Justices have to abandon an incredibly strict view of the Constitution. They must channel their inner John Stuart Mill and become individualist and question the sanctity of our beloved founders’ beliefs. They should use reason and logic to question if those original values are really valuable.

Or perhaps I’m being a bit too hopeful. This is an idea with which I’ve been wrestling in my head for quite some time. Because there’s a somewhat (though I wish it weren’t) fair argument to be made that that perverted idea of reality is what America is. Our Constitution provides our country instructions with how to govern society and if you don’t like that foundation, well, you could move to a country with different ideals. Maybe Canada.


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