Incivility or Shifting Social Paradigms?

by Cliopatria

NYTimes guest columnist Dahlia Lithwick is arguing that the"activist judge" label deserves an equally withering counter, something that can be bandied about when judges are activist in reactionary ways (which is at least as common). Her nomination:"re-activist":

Re-activist judges are the ones trying to roll back time to the 19th century. Re-activists are the judges who have reactivated federalism by rediscovering the"dignity" of states. ... Re-activist judges have increasingly adopted the view that their personal religious convictions somehow obviate the constitutional divide between church and state. ... Re-activist judges are able to present themselves as"strict constructionists" or"originalists" by arguing, as does Justice Clarence Thomas, that any case decided wrongly (i.e., not in accordance with the framers of the Constitution) should simply be erased, as though erasure is somehow a passive act. And while there is an urgent normative debate underlying this issue - over whether the Constitution should evolve or stay static - no one ought to be allowed to claim that the act of clubbing a live Constitution to death isn't activism.

(Writers note: the baby seal metaphor was probably what got the column started: bloggers and songwriters know how it is: you find a phrase or an image in your head, and you build something around it. If you're really good, people don't notice which phrase it was.)

While I applaud her attempt to highlight the hidden activism of" conservative" judicators and challenge the"judicial activism" meme, the moderate in me wonders why the middle ground -- the vast majority of judges at all levels doing their best to apply enduring and slowly changing legal doctrines to swiftly shifting gray areas of contemporary life -- gets so little attention.

Or perhaps the problem is a perceptual and rhetorical one, caused by the very real diversity of political thought and theory in America, and the increasingly powerful tendency to demonize the opposition(s). Depending on what camp you belong to, 'smart' judges are the ones that agree with you, and 'activist' judges are the ones that don't? No, I don't think it's that simple, though sometimes the rhetoric does seem to fall that way.

Perhaps we've really come to a point where we are getting at the heart of the matter, a nexus where issues of federalism, rights, religion, legitimacy, identity, security need to be addressed in fundamental ways. The last time we did this was in the 50s and 60s, I think, so perhaps we really are due. Then, when we work these questions out, we can come together again in a reasonably coherent manner and go on for another few decades, pushing the limits and exploring the gray areas of our new paradigm. Maybe, though, I'm being overly optimistic to think that this Supreme Court can actually resolve some of these questions without exacerbating them.

Follow-up: Brandon, at Siris, thinks I may be underestimating the degree to which the judiciary has, due to a lack of checks on its authority,"precedent by precedent, slowly moved or begun to move outside its Constitutional bounds, and that therefore the problem is systemic." The Canadian Constitution, he points out, has a clause, enacted in 1982 (Clause 32), allowing the legislature to check the judiciary.

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Anne Zook - 8/17/2004

Except that I don't think that would work as efficiently.

What matters are trends and you identify trends by identifying the goals of each fringe, then periodically comparing those goals against "the middle today" and "the middle yesterday" to see if the "middle" has shifted one way or another.

I'm having trouble putting this into words...but it's also a matter of degree. If the "law and order" talking points decree that criminal ought to serve an average 30 day longer sentence than they do, then a 20-day increase in the average sentence passed down is major shift toward that side. But if the talking point calls for an additional year on each sentence, then a 20-day increase isn't that significant.*

If you keep your eye on the fringes, you can not only tell which direction the middle is favoring, but to what extent it's being favored. In that context, one lunatic judge isn't significant, but an entire circuit court full of them might be. I think I'm trying to say that it's the revolution on the fringes that produces evolution in the middle.

(*That's not really a good example, so let's not push it too far.)

Jonathan Dresner - 8/16/2004

You're right, of course, and when the middle shifts towards one of the fringes we start jabbering on about 'new paradigms' and eras and such.

But my problem is with the reportage that presents the fringes as if they were the only group that matters, that gets caught up in the excitement and ignores the bigger pictures, that balances radicals with radicals and never lets the moderates speak.

Frankly, if people paid more attention to the middle, they might have a better sense for which fringe is winning.

Anne Zook - 8/16/2004

You said: "...the moderate in me wonders why the middle ground -- the vast majority of judges at all levels doing their best to apply enduring and slowly changing legal doctrines to swiftly shifting gray areas of contemporary life -- gets so little attention."

Because the squeaky wheel gets the grease?

I applaud the idea of celebrating people who just show up and do their jobs to the best of their abilities, but if you focus on the "middle ground" and ignore where the edges are going, pretty soon you find the middle isn't where you thought it was.

Oscar Chamberlain - 8/16/2004

You make a good point about there being times to consider original intent and times to not do so. As a professor of mine once suggested, knowing the range of the original debate over a provision can be quite illuminating.

The grand migraine for restrained conservative jurisprudence was, of course, race. Southern states after reconstruction (and particularly after around 1890) had done a masterful job of denying African Americans the substance of the 14th and 15th amendments while (apparently) upholding it procedurally.

Restrained conservative jurisprudence--whihc stops at procedure--could not deal with this effectively. And by construing narrowly the power the 14th amendment gave the Congress, it made it difficult for Congress to do so too.

It was to solve this impass that the Court, beginning really with the Vinter Court, moved to substantive due process in this area. And when the court turns to substantive due process it is, inherently, asserting the right to second guess the legislature and to impose new rules (and therefore new law) upon them.

Jonathan Dresner - 8/16/2004

The conflation of moral values and constitutional issues is a very, very good point, and it really does clarify a great deal about the last couple of decades. But there is a sense in which the Constitution is supposed to be our guiding principles, our highest values defined and enacted.

We live in different jurisdictions, we worship in varying degrees and manners, we do many different things, but the Constitution is the essential document which creates community out of diversity. I don't want to get too dewy-eyed about it, but it is the thing we all agree to argue about, and that is worth a great deal.

That said, I'm not methodological constitutional scholar (I'm not an orthodox anything). I think there are times in which the text needs to be extended to match the situation because the situations are truly new, and times when we should be asking 'What did they mean by this, and does that help us understand what we're arguing about now?"

Oscar Chamberlain - 8/16/2004

The problem of the courts and partisanships reflects the larger history of the relationship between the constitution and politics.

Despite the deep divisions in the country over ratification of the Constitution in 1787-88, it was very quickly accepted at THE Constitution-- so much so that as early as the struggle over the first Bank of the US in the early 1790s, much of the debate centered not on whether the Bank was good but on whether it was consitutional.

More precisely, the term constitutional was conflated with "good" and "unconstitutional" with "bad." Over time, as interpretation of the constitution shifted to the Courts, there also shifted the temptation to view constitutionality in a moral light. What is good should be constitutional; what is bad should not be.

What makes this particularly pernicious is that this can infiltrate any stated philosophy. As an example supporters of "original intent" have been as selective in choosing which "original intents" should be honored or not as the activist courts of the late 19th and 20the century were in selecting what parts of the Bill of Rights to stick in the 14th amendment.