It is possible to construct an honest defense of modern judicial activism. However, that activism consists of striking down laws that are the product of the democratic processes, based on nothing more than judges’ sense of what is decent and proper (as confirmed, where possible, by foreign law). Thus, the defense of judicial activism entails a fair amount of contempt for the American people’s sense of decency and propriety. For that reason, we seldom see an honest defense. Instead, we see drivel like this piece in the Washington Post by law professor Jeffrey Rosen.
There is scarcely a valid paragraph in Rosen’s piece. He starts by claiming that “both liberals and conservatives are increasingly asking judges to decide issues — from the right to die to presidential elections — that politics are unable to resolve.” Rosen thereby tries to create the impression that liberals and conservatives both favor an activist judiciary. But, in the case of conservatives, this manifestly is not so. Rosen seems to confuse asking one court to overrule another court with asking courts to overrule the decisions made by legislatures pursuant to the political process.
Rosen also claims that the decisions of the Supreme Court are consistent with the will of the people as reflected, “narrowly,” in public opinion polls. Relying on a book by leftist law professor Mark Tushnet, he cites affirmative action, gay rights, and abortion as examples. I have not read Tushnet’s book, but I do read the newspapers. Thus, I know that the people, in referenda even in liberal states like California, have voted by big majorities to outlaw preferential affirmative action in college admissions. Yet, the Supreme Court finds no problem with such race-based decisionmaking. I’m not saying that referenda in states like California are relevant to the constitutionality of decisions by bureaucrats in Michigan to engage in racial discrimination. But let’s not pretend that, in Rosen’s words, the Court has “supported the views of a narrow majority of the American people” when it comes to affirmative action. Rosen’s overall argument is that judges should decide these kinds of cases without regard to public opinion. But, unwilling to acknowledge the anti-democratic consequences of his position, he feels compelled to hide behind dubious polling data. One senses that he’s giving expression to a liberal dream — rule by elitist judges with “popular” input, where necessary, provided through MSM polls.
Rosen also faults Congress for engaging in warfare over judicial nominations. But he fails to acknowledge that this is a natural consequence of a judiciary that asserts the power to make decisions on explosive issues governing nearly every aspect of societal life based on the personal preferences of judges. How could the peoples’ representatives not have a huge interest in controlling the selection of those who exercise such immense power?
Rosen gives the game away towards the end of his piece, when he criticizes journalists for emphasizing the political affiliation of federal judges and the presidents who appointed them. But these affiliations either help explain how judges decide cases or they don’t. If they do — if, as everyone understands to be the case, there is a strong correlation between political affiliation and the way judges vote in the most controversial cases — what is the argument for ignoring party affiliation?
Rosen suggests an argument — that people are increasingly “unwilling to accept judicial decisions with which they disagree.” If Rosen means that people aren’t obeying such decisions, he’s wrong. If he means that people are unwilling to accept decisions as correct, he may be right. But so what? Don’t we still have that right in this country?
It is one thing to argue for an activist judiciary that exercises minimal restraint in overturning popularly enacted legislation. It is another to pretend that such a judiciary is exercising the will the people; to criticize legislators for fighting over the selection of judges; and to ask journalists to pretend that the party affiliation of judges is irrelevant. Ultimately, Rosen is arguing not only for a judiciary with extraordinary power, but also one with extraordinary immunity from public criticism.
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