5-20-05

Marc Bacharach was a blogger for the late HNN-hosted blog Rebuke.

For my first post since returning from vacation, I have little to say about the Roberts nomination that Derek did not say better below. Given the reality of Rehnquist’s health, and thus the likelihood of another opening soon, and the relatively amicable appearance of Roberts, my suggestion to the Democrats is to pick their battles wisely and demonstrate to the nation that they will not reject someone simply for rejections sake. Of course, Roberts is not perfect, as Slate and others have pointed out, but he is far closer to Rehnquist than to Thomas or Scalia (at least that is how it appears at first glance) and from a president that has chosen some of the most conservative judges in recent history , I am personally relieved at the choice thus far (although I must emphasis that there is a lot that could come out to change my opinion).

It is worth at this time pointing out the historical ignorance of a popular political tale. Bush has said many times that he wants to appoint a judge that will not “legislate from the bench,” a term that has been thrown around more often than the name of CIA operatives (couldn’t resist). I am about to say what everyone who understands how our government works already knows: judges make the law, they legislative from the bench, and they are inherently judicially active any time that they agree to hear a case.

There is a popular myth, probably originating in high school social studies classes, but continued through politicians and presidents of both parties, that the judici5ary “interprets” the law but only the legislature “makes” it, while the executive is a mere “enforcer.” While this is a pleasant ideal type, it is not reality. Although it would be enough to point out the inherent legislative decisions of Marbury v. Madison (perhaps the most glaring example of judicial activism since judicial review is mentioned nowhere in the Constitution), Dred Scott v. Sanford, Plessey v. Ferguson, Brown v. Board of Education, Miranda v. Arizona, and other well-known controversial cases that made law just as surely as any Congress, there is no need to go back that far to find cases that will generate laws just by virtue of being looked at and decided on by the court.

For example, in the recent case of Rasul v. Bush, the SC found that U.S. courts have jurisdiction to consider legal appeals filed on behalf of foreign citizens held by the United States military in Guantanamo Bay, disagreeing with the administration’s contention that those held in Cuba have no right to challenge their detention since U.S. courts have no jurisdiction there. Was this judicial activism? Why? Had the court ruled in favor of the administration, it would have closed the door on any challenge a prisoner at Guantanamo might have forever, a pretty sweeping judgment. In what way could the court have ruled that would NOT have “legislated from the bench”? How could the SC have used the Constitution itself as a guide?

Traditional conservatives tend to believe that any decision that overturns a legislative act or bill is judicial activism, but I do not accept this broad definition, since it precludes any substantive role in our democracy without being labeled an “activist.”

It is my opinion that only when a court refuses to hear a case at all can it rightly be called judicial restraint (although even that could be considered a legislative decision to support the status quo).

In the SC’s next session, they will have to answer the following questions:

- Does a prosecutor who speaks on a matter of public concern by reporting suspected police misconduct to his superiors lose his First Amendment protection against retaliation by his employer solely because he communicated his message while performing his job?
(Garcetti v. Ceballos)

- Can the Attorney General permissibly construed the Controlled Substances Act to prohibit the distribution of federally controlled drugs for the purpose of facilitating an individual’s suicide, regardless of a state law purporting to authorize such distribution?
(Gonzales v. Oregon)

- Is time employees must spend walking to and from stations where required safety equipment is distributed compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act?
(IBP v. Alvarez)

- Under the Individuals with Disabilities Education Act, when parents of a disabled child and a local school district reach an impasse over the child’s individualized education program, either side has a right to bring the dispute to an administrative hearing officer for resolution. At the hearing, which side has the burden of proof -- the parents or the school district?
(Schaffer v. Weast)

Although not as “sexy” as abortion or file-sharing, these cases, and many others, will significantly shape national policy and directly effect millions of Americans. You may argue that the court should make decisions in favor of state governments over the federal government, or vice-versa; you may claim that they should rule in favor of individual rights over government regulation and interference, or vice-versa; you may certainly argue that private interests should be protected over corporate interests, or vice-versa, but let us stop arguing that the role of judges is merely to interpret the law not to make it and accept that judicial activism has only one political meaning: to rule in a way that I do not agree with.

(For an excellent in-depth argument in favor of our current democratic system over the utopian neutrality of judges consistently advocated by political leaders, I recommend the book, “In Defense of a Political Court” by Terri Jennings Peretti , a book that should be required reading in any Constitutional Law class.)