Judicial Activism? Or Just Doing Their Job?

Some people cry "judicial activism" whenever they don't like the outcome of a Supreme Court decision, especially when the decision overturns longstanding laws. Some of these people have simply forgotten their high school civics classes. For them, let me offer a brief refresher on some key points.

The Bill of Rights exists to protect the rights of unpopular minorities from being trampled by majorities. Although we live in a democracy, the majority does NOT always rule. That would be a "mob-ocracy", something our founding fathers wisely feared, and which is why they created a system of government with many checks and balances, including a Bill of Rights. One of the crucial jobs of the courts, especially Supreme Courts, is to interpret the Constitution, and to overrule laws that would violate constitutional rights. Thus, when a challenged law violates constitutional rights, it does NOT matter that the law was duly enacted by the Legislature, or by an initiative statute by vote of the people. In such cases, it is the proper job of the court to find the law unconstitutional, and to strike it down. This is not "legislating from the bench", it is interpreting the constitution. It is not a violation of the separation of powers, it is the completely proper functioning of an independent judiciary within a properly functioning separation-of-powers system. This has been understood to be the case in our nation since Marbury v. Madison was decided by the U.S. Supreme Court in 1803, and is a most cherished and fundamental precedent.

When a law violates constitutional rights, it does not matter that the law has broad popular support, or that the law has substantial weight of history and tradition behind it. There are numerous instances in our history where it fell to the courts to rectify the longstanding codification of infringed liberties and unequal protection. It is precisely when a disparaged minority is aggrieved by tradition and popular opinion that it falls to the courts to protect them. It would be nonsensical and self-defeating for the courts, in such cases, to give any weight to tradition or to popular opinion. The only thing on the court's mind is and ought to be the constitution and the laws they are to interpret. Tradition and popular opinion have no place in the process. If it were otherwise, we would still have segregated schools, all-male juries, and bans on mixed-race marriages.

Admittedly, tradition and popular opinion are powerful forces, and it can be difficult to keep them in historical perspective. It is easy to forget that older decisions now widely accepted were once highly controversial. Now in 2008, most Americans are rightly embarrassed about our history of segregated schools half a century ago, and most Americans would be rightly shocked and appalled at the notion that police might burst into someone's bedroom and arrest them for having a mixed-race marriage, or for using contraception. But in 1951, when Oliver Brown challenged the segregated school system in Kansas, his cause was by no means a popular one. In an early morning in 1958, when Richard and Mildred Loving were awakened to police flashlights shining in their faces, and demands of "Mr. Loving, who is this black woman in your bed?", longstanding tradition was not on their side. In 1961, when Estelle Griswold was arrested for opening a birth control clinic in Connecticut, tradition and popular opinion weighed heavily against her. And certainly back in 1948, when Andrea Perez (a Mexican-American) and Sylvester Davis (a black man) were denied a marriage license in Los Angeles, few people saw the injustice. Half a century later, the injustice of these situations is widely recognized, and we can be thankful that judges at the time had the wisdom and the courage to take the side of the constitution even against tradition and popular opinion. Even so, one can recognize the justice of long-past controversies, while failing to recognize similar calls to justice in present-day controversies. As Chief Justice George quoted the U.S. Supreme Court, "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress."

It seems to me that those who cry "judicial activism" must either competely reject a long and proud tradition of judicial review, or explain why it was appropriate to disregard tradition and popular opinion in Perez v. Sharp, Brown v. Board of Education, Loving v. Virginia, Griswold v. Connecticut, and other celebrated cases, while deferring to tradition and popular opinion in whatever unpopular constitutional case is at hand.