With the U.S. Supreme Court starting its 2011-2012 term this week, it seems like the perfect time to talk about one of most important reasons Republicans love government – activists judges. I know this may seem confusing. After all, during the Senate confirmation hearings for Sonia Sotomayor and Elena Kagan, Republican senators repeatedly warned against the evils of activist judges and this Friday, Newt Gingrich is planning a big speech about his plan to allow Congress to essentially fire activist judges. (In his own humble words, this will be “one of the more important speeches of the campaign.”)
Of course, activism is all in the eye of the beholder. I know what you are thinking…this is remarkably similar to whether someone believes his or her favorite baseball team was cheating in the 2000’s when pretty much every team had a few power hitters using performance enhancing drugs (PEDs). I was thinking the same thing.
Personally, I’m a San Francisco Giants fan and I thoroughly enjoyed Barry Bonds’ assault on the record books, even though his suddenly enormous head clearly signaled he was using PEDs. Likewise, I haven’t heard any Boston Red Sox fans suggesting the Red Sox should vacate their World Series championships, even though they had their own cheaters. Basically, during the 2000’s a baseball player was cheating if he was taking PEDs and on someone else’s team, but not a cheater if he was taking PEDs and on your favorite baseball team. Sounds a lot like how Republicans view activist judges.
Let’s first try to define the term “activist judge.” Unfortunately, that’s not an easy task. There are several different points of view on this, but best I can tell,1 it is when a judge makes a ruling based upon their own personal political or policy preferences rather than the rule of law. It’s this last part that gets a little sticky. I’ve read arguments that the “rule of law” (as I’m using it here) can be the Constitution in its original meaning, anything passed by Congress, or simply legal precedent. At least the Heritage Foundation admits it “may be either liberal or conservative.”
Personally, I like to focus on the first part of the definition — advancing a political or policy preference. Using this definition, here are three great examples of Supreme Court judicial activism Republicans love:2
Bush v. Gore (2000)
One of the long-held pillars of “judicial restraint” (the opposite of “judicial activism”) is that federal judges should restrain from interfering with states’ rights. However, in this case, the Supreme Court functionally took away power from the Florida Supreme Court, who in interpreting Florida election law, had deemed it appropriate to order a statewide recount of all undervotes and overvotes. (And gave us one of the worst presidencies ever, according to noted political scientists.)
District of Columbia v. Heller (2008)
In this case the Supreme Court struck down the District of Columbia’s 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. Notably, it was first time in American history that a Federal appeals court has struck down a gun law on Second Amendment grounds. That may sound weird, given what you’ve probably heard about the Second Amendment, but historically the right to possess a firearm has been connected to militia service and not an individual right.3
Citizens United v. Federal Election Commission (2010)
In this decision the Supreme Court gutted the McCain-Feingold campaign-finance law and overturned roughly a century of legal precedent by ruling that corporations and unions can spend unlimited amounts of money in election campaigns. Essentially, they said that corporations have the same free speech rights as human beings, a sentiment echoed earlier this year when Mitt Romney said that “corporations are people.” Get prepared for some excessively-expensive, overly-dramatic and marginally-truthful campaign ads this election cycle.
Finally, there are all sorts of laws and prior Supreme Court decisions Republicans would love some activist judges to overturn, including Roe v. Wade, any recent law or ruling permitting same-sex marriage and, of course, “ObamaCare” (previously known as the Heritage Foundation’s, Newt Gingrich’s and Mitt Romney’s healthcare plan).
So, it seems abundantly clear to me that Republicans love activist judges seeking to advance Republican policy goals. To be honest, that’s totally rational. Of course they want judges who do everything they can to advance a Republican agenda. Democrats want the same thing. In fact, we all want activist judges interpreting the law in ways consistent with our own world views. After all, the song goes, “Root, root, root for the home team, if they don’t win it’s a shame…,” and not “root, root, root for the any old team, we don’t care who wins the game…”
- Keep in mind I’m not a lawyer and most of what I have learned about the law came from this scene in Animal House. ↩
- Jeffrey Toobin wrote a nice rundown of these last December in The New Yorker. ↩
- Of course, no one really knows what the Second Amendment means. It’s sort of impossible to interpret. Go ahead, read it. It’s a grammatical mess, reminiscent of this fantastic beauty pageant answer: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” ↩