The Activist Judge Myth
August 14, 2006
Susan Jacoby is the author of Freethinkers: A History of American Secularism and program director of the Center for Inquiry-New York City.
Death threats are now a part of the job for judges whose decisions run counter to the right’s cultural, religious and political agenda.
U.S. District Court Judge John E. Jones, who ruled last December (in Kitzmiller v. Dover School District) against the teaching of “intelligent design” in public schools, needed federal marshals to protect him and his family after he issued his landmark decision. So did his colleague in Florida, U.S. District Court Judge James Whittemore, when he refused to intervene to prevent the removal of Terry Schiavo’s feeding tube. In Chicago last year, Judge Joan H. Lefkow’s husband and mother were murdered by a disgruntled medical malpractice litigant but police originally went down the wrong investigative path because a white supremacist had already been convicted of conspiring to murder the judge.
The killer of Lefkow’s family was lying in wait for her at home—something easy to do these days because far-right websites have made a point of publishing home addresses of those charged with the crime of being “activist judges,” a.k.a. taking the First Amendment and the rest of the Bill of Rights seriously.
But the current climate of hostility to the judiciary cannot be written off as a product of the lunatic fringe. Attacks on “activist judges”—a phrase that, like “the elites,” has become a code word for liberals—are regularly issued by Republican officeholders from the White House to state legislatures. The assault on an independent judiciary has always been an integral part of the Rovian political strategy that put President George W. Bush in office.
The Democratic Party’s response has been defensive and wishy-washy. Al Gore and John Kerry said almost nothing about the judiciary during their presidential campaigns unless they were asked a direct question—and questions were rarely asked because judges, unless their relatives are being murdered, are not hot news. Furthermore, the issue of “activist judges” resembles the “values issue” in that it has been brilliantly hijacked by the right in a fashion that tends to elicit me-too answers along the lines of, “I don’t like activist judges either, but I do want fair judges.”
The truth is that the real issue is not the activism of judges but the principles upon which they are acting.
In May 2005, after the Republican majority threatened to change the rules of the Senate to eliminate the filibuster, Senate Democrats agreed to a “compromise” in which they promised to employ the filibuster only in “extraordinary” circumstances. Senate Republicans promised—well, actually they promised nothing except that they would not change the rules of the Senate to eliminate the filibuster at that particular moment.
This so-called compromise freed the Senate to confirm some of Bush’s worst appellate court appointees—judges lionized by the Christian Coalition and Focus on the Family—and allowed John G. Roberts and Samuel A. Alito to sail through their Supreme Court confirmation hearings without answering any discomfiting questions. The result is a high court one vote away from being dominated by judges whose view of government is conditioned by their conviction that government power is bad—except when exercised to tear down the barrier between church and state or to conduct foreign policy and gather domestic intelligence without independent oversight.
Roberts and Alito now form a voting bloc with Antonin Scalia and Clarence Thomas. All are, in fact, activist judges on behalf of right-wing ideology. They believe in states’ rights—unless a state wants to do something that is anathema to the right.
Roberts registered his first dissent in January, along with Scalia and Thomas (Alito had not yet joined the court), in the Oregon assisted suicide case (Gonzalez v. Oregon ). The 1997 Oregon law, twice upheld by voters in referendums, allows doctors to prescribe a lethal dose of medication for terminally ill patients who wish to end their own lives. But the right-wing activists on the court, forgoing their customary obeisance to states’ rights, declared that the federal interest in regulating dangerous drugs took precedence over the wishes of state voters.
Bush’s appointees would no doubt believe in limitations on executive power if a liberal were president but they approve of the current administration’s expansion of executive power as a necessity of war. When the court ruled this summer in a 5-4 decision (Hamdan v. Rumsfeld ) that the secret military tribunals at Guantánamo are unconstitutional, the four stooges—no, the four non-activists—dissented.
What the right resents is what the framers of the Constitution intended—a judiciary able to serve as a counterweight to popular passions. Conservatives oppose the appointment of any judge who, like many great Supreme Court justices in the past—Hugo Black, Earl Warren and Harry Blackmun come to mind—might confound the expectations of the presidents who appointed them. John Jones, who was active in Pennsylvania Republican politics before his appointment by Bush in 2002, is such a judge.
After Jones issued his carefully reasoned, scientifically literate decision on intelligent design, Phyllis Schafly—who preceded Ann Coulter as the doyenne of right-wing harpies—informed the judge that he owed his job to the evangelical Christians who voted for Bush and that he had “stuck the knife in the backs of those who brought him to the dance.”
Judge Jones answered the attack in a speech to the B’nai B’rith Anti-Defamation League. “Polls show that many Americans believe that it is acceptable to teach creationism in public schools…,” he observed, “But I submit to you that as citizens, we do not want and cannot possibly have a judiciary which operates according to the polls, or one which rules based on who appointed us or according to the popular will of the country at any given moment in time.”
This is not a case that judges should have to make on behalf of themselves but a case that politicians who understand the meaning of the Constitution ought to be making to the public.
One vote away.