Rightwingers are masters of the empty slogan–they can throw one at any serious issue you can think of.   Of course, when it comes to the courts, the bleated refrain of choice is "activist judges".  The phrase means absolutely nothing to anyone who has even glanced at the Constitution and Supreme Court decisions, but media insiders grasp at it, ever desperate to reduce complex issues to digestible soundbites.

Sen. Jeff Sessions (R-AL) is the latest to play this tired game, this time managing to smear an icon of American legal history by dismissing Thurgood Marshall, lead attorney in the Brown v. Board case, the first African-American on the high court, and a hero to anyone who believes in basic justice, as one of "two activist judges" Supreme Court nominee Elena Kagan clerked for.

Setting aside the awkwardness involved when Sessions, whose own federal court nomination was scuttled amid charges of "gross insensitivity to the questions of race", derides a civil rights icon, this accusation is a reminder that it’s past time to put away the clumsy "activist judge" label.

What exactly is an "activist judge"?  It’s hard to say as it’s rarely defined, but rightwingers often contrast activist judges with the equally mythical strict constructionist.  Activists make up the law and legislate from the bench while strict constructionists simply apply the clear language of the Constitution as written to objectively resolve modern controversies.  That sounds neat and makes for a nice story, but any lawyer, any first year law student, understands this is a fairy tale.

First, the activist/strict constructionist dichotomy depends on the Constitution containing language that can be clearly and objectively defined.  That’s simply not reality.  The Constitution does not come with definitions (it doesn’t even come with instructions as to how it is to be interpreted).  For years, Supreme Court justices have grappled with ambiguous phrases like "Congress shall make no law respecting an establishment of religion", "due process", "freedom of speech", "unreasonable searches and seizures".  These are not mathematical equations a computer can solve–they are ambiguous phrases without clear meaning–especially when applied to specific cases.  Reasonable people can and do differ about their implications.

Second, the activist judge myth willfully ignores the reality of more than 200 years of Supreme Court decisionmaking.  If judges are only legitimate when they stick to the plain text of the Constitution, then our Court has been a farce since Marbury v. Madison, when Chief Justice Marshall inferred the courts’ authority to exercise judicial review–to strike down statutes it sees as unconstitutional–even though this authority is specified nowhere in the Constitution.  We’d have to get rid of incorporation–the idea that states are bound to respect the Bill of Rights, even though the Constitution does not expressly say so.  That would mean state police officers could barge into private homes without a warrant and state governments could announce their own officials religions, as long as such acts were not prohibited by state constitutions.   Governments at all levels would be free to openly discriminate against women since the equal protection clause does not expressly speak to sex discrimination (and certainly was not intended to do so when enacted in 1868).  Free speech and free exercise of religion rights would have to be absolute, since that is how they are described in the Constitution.  That would mean the religiously faithful would be protected in practicing polygamy and government could not punish speech that poses an imminent and likely threat to the public safety.

Sen. Sessions has scored a two-fer, managing to smear a civil rights icon even as he continues to lie to the American public about what it means for the Supreme Court to decide cases under the U.S. Constitution.  Someone ought to ask him some basic questions: does he consider Marbury v. Madison to be an "activist" decision?  If not, why not?  Can he tell us how a "strict constructionist" would apply the Establishment, Free Exercise and Free Speech Clauses to specific cases without putting one foot outside the strict confines of the text?  It’s time to put the judicial activism charade to an end–but that means forcing its enablers to explain just what they mean when they toss around this meaningless slogan.

Chris Edelson

Chris Edelson

Chris is a lawyer and professor at American University who writes frequently about current political and media issues. His writing has also been published in The Philadelphia Inquirer, Metroland (Albany, NY), and at commondreams.org

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