The Square Circuit

Academia, parenthood, living in a bankrupt city, and what I read in the process.

Monday, October 03, 2005

legislating from the bench

It's been interesting to see how the Bush Administration and its Congressional apologists have been using language to prepare for the next Supreme Court confirmation battle. Three key terms—"strict constructionist," "judicial activist," and "not legislating from the bench"—are already recurring here in a way we didn't see with Roberts, who had much more impressive credentials than Miers. These terms were originally popularized during the battle over segregation, when Southern politicians were infuriated by the Warren court's Brown v. Board of Ed decision and then by its consistent upholding of desegregation orders. Their opposition was largely based on the calculus of racism, of course, and came cloaked in the term "states' rights." But as the Republicans developed their "Southern strategy" of winning over Southern Democrats by appealing to their racial animus, they found it useful to come up with a term for the kind of jurisprudence they disliked that didn't have the racist inflection of "states' rights."

Ronald Dworkin, the legal scholar, points out in a 1972 article that Nixon endorsed "strict constructionism," a term that meant essentially anything the speaker wanted it to, but generally has been used by the Republicans to indicate never deviating from the "proper" meaning of the Constitution—"proper" of course meaning squaring with Republican policy desires.

"Judicial activism," probably the most popular and enduring of these terms, suggests that judges—who we feel should be properly cloistered at the bench, allowed only to judge and never to act—are making law themselves. Of course, the nature of "activism" is in the eye of the beholder. Many conservatives point to the overruling of precedents and the invalidation of laws as "activism," pointing to Roe v. Wade (abortion) and Griswold v. Connecticut (birth control) and neglecting to mention that condemnation of "activist judges" really began in earnest with Southern resistance to desegregation. However, the New York Times pointed out that Clarence Thomas has proven more likely than any other Justice to overrule laws. In the view of those who use this popular but misleading term, it's only when one overrules a law that one LIKES that one becomes an "activist."

Finally, the term "legislate from the bench" is essentially synonymous with "judicial activist," just in verb form. When it is employed, we are supposed to nod in agreement that it is not the judicial branch's job to make laws. Again, this starts with Brown v. Board of Ed and gets really heated with Roe and Griswold and now with Lawrence v. Texas, which ruled 6-3 that states cannot outlaw sodomy.

Bush today:
And a justice must strictly apply the Constitution and laws of the United States and not legislate from the bench.
In its consideration of Chief Justice Roberts' nomination, the Senate made it clear that a well-qualified nominee committed to strictly interpret the law can be confirmed promptly and by a large, bipartisan majority.

If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong and help ensure that the courts meet their obligation to strictly apply the law and the Constitution.

Texas Senator John Cornyn (about the Solomon Amendment):
I’m asking you to ensure we have judges who understand the role of a judge, who believe in judicial restraint, and will act as fair, impartial referees – not legislators in robes.


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