Publisher's Note: The return of Diane Rufino is a well considered treatise on current and past 'judicial activism.' No burying the lead here, Diane tells us how it really is, and supports it quite well. Over time, Diane has proven to be one of our most popular contributors.
How do you know 'judicial activism' when you see it? Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."
Beginning at the turn of the 20th century, activist judicial decisions initiated the start of a major transformation in American law. Prior to that time, there had certainly been many incidences of judicial overreaching, but these were generally rationalized as somehow representing the original intent of the drafters of the Constitution. But in the 20th century, and probably beginning most especially with Brown v. Board of Education (the school desegregation case), we had era of "activist" jurisprudence where the Court interpreted laws and the Constitution not according to established principles of construction, but according to the social agenda the justices wished to promote.
As we all know, there are two schools of thought with respect to the interpretation of our US Constitution. One school believes in the "original intent" of the document, as provided to us by our Founding Fathers, and therefore are referred to as "originalists." In fact, our Founders provided clear instruction that the Constitution was to be construed strictly and in accordance to their intent. Others see the Constitution as a "living document" which is open to broad interpretation and are referred to as "liberals." Under the "originalist" approach, the Constitution is viewed as a "static" document - one that doesn't change meaning from era to era. What the document meant in 1787 is the same as what it means today. Judges are expected to stick to what the Founding Fathers intended. The Constitution's principles are timeless, for as they are meant to address lessons that that hundreds/thousands of years of history have taught. "Originalists" see the Constitution in terms of black and white and its provisions are to be interpreted "literally."
On the other hand, those who see the Constitution as a "living document" believe that judges can interpret it as they wish. They believe the Constitution is meant to 'live' and 'breath.' It is meant to evolve, as society evolves. In their opinion, it is essentially an outdated document that must be interpreted "liberally." Liberal judges see the Constitution in shades of gray.
Conservatives are "originalists" because they want to 'conserve' our core values. Liberals or progressives take the "living document" approach because they can't effect societal change unless they erase or erode old norms. They can't make fundamental new law unless they destroy the old law.
Which is the correct approach? If you believe our Founding Fathers, then you would follow their advice and take the "originalist" approach and look at the Constitution as a static document with a clear definition and purpose. And why wouldn't you believe our Founding Fathers? After all, they provided us all with the greatest grant of individual liberty with respect to government anywhere in the world. If you don't value freedom and liberty and feel government knows best, than you might follow the "living document" approach and take your chances with whatever viewpoint the particular judge has at any given moment.
But you might want to reflect on this: The whole purpose of any constitution, and especially the Constitution of the United States, is to remove as best as possible and as much as possible the interpretation and application of the law from political controversy. With a constitution, the purpose is to set up basic principles that are going to apply and then the legislature and the courts are supposed to abide by them faithfully. The US Constitution has a method for dealing with political questions. It's called the "Amendment process." Article V. If it turns out that there are provisions of the Constitution that don't adequately address issues and problems that we encounter today, then we go into that process. It requires a supermajority - 2/3 of both houses of Congress and then ratification by 3/4 of state legislatures. But that's designed to make the process of changing the Constitution really responsive to the desires of the population. Changes to the Constitution should not be made lightly. We really want to know what the whole country in essence believes should be done and not just what a simple majority of one legislature should be done.
There are several examples of support for the "orginalist" approach to constitutional interpretation. First there is Contract law. The Constitution is essentially an agreement, signed by the States, on behalf of We the People. What it meant in 1787 is what it means today. Can you imagine a reasonable person entering into an agreement of significant consequence w/o knowing how that document/agreement will be changed or interpreted in the future? No party would enter into such an agreement - especially with such enormous consequences as the States did in 1787. Second, there is the "Article V: Amendment Process." The very fact that the Constitution has a provision for amending itself tells us that's the way it's supposed to be done. And third, there is the advice itself from our Founding Fathers. As Thomas Jefferson said: "On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text or invented against it, conform to the probable one which was passed."
Judicial activism is what results from a "liberal" interpretation of the Constitution and our laws. Essentially, judges "make law" by injecting their personal views into legal interpretation and analysis. This is dangerous because under the separation of powers doctrine, a doctrine so vitally important in maintaining the integrity of our government, only the legislative branch is supposed to "make" laws. The landmark case, Marbury v. Madison (1803) stands for the rule that the judiciary is supposed to faithfully interpret the law and to declare any law which is repugnant to the Constitution null and void.
We saw judicial activism in Brown v. Board of Education, in 1953, when the Supreme Court identified a new standard for education - classes must be integrated. The "Separate but Equal" doctrine that the Court had previously held as sufficient under the Equal Protection Clause was thrown out for education because Chief Justice Earl Warren felt it didn't sufficiently apply. He felt that segregation by race inferred a sense of inferiority on black students which would affect their education. The decision was more about social reform than it was about following the letter of the law.
A look at a few landmark (activist) cases might help show how activism has redefined our Constitution and reshaped our social landscape.
Brown v. Board of Education (1953)
In Brown v. Board of Education, black children were denied admission to public schools that were attended by white children under laws requiring or permitting segregation according to race. The white and black schools approached equality in terms of buildings, curricula, qualifications, and teacher salaries. This case was decided together with Briggs v. Elliott and Davis v. County School Board of Prince Edward County.
For the previous 58 years, the Supreme Court had consistently held that separate (segregated) public facilities could be considered equal, if they met certain standards, and therefore met constitutional requirements. That is, this standard implied that there would be no inferior or unequal treatment and therefore, no Equal Protection violation. Nevertheless, the question before the Court in Brown was whether the "separate but equal" doctrine should apply to education. (The "separate-but-equal" doctrine had been upheld in an earlier decision, Plessy v. Ferguson, in 1896). Does segregation of children in public schools solely on the basis of race deprive the minority children of the equal protection of the laws guaranteed by the 14th Amendment?
The Court held that segregated schools are inherently unequal. The decision was surprisingly brief and contained very little in the way of legal argument and legal analysis.... particularly for a case that was to overturn a half century of jurisprudence. The case called on the Court to look at the intent of the 14th Amendment when it was drafted and adopted. The Court noted that Congress, when drafting the Fourteenth Amendment in the 1860s, did not expressly intend to require integration of public schools. Nevertheless, Warren noted that the emphasis on education had increased over the years and had become an essential part of citizens' lives. Any child denied a good education would not be likely to succeed in life. He reasoned that when a state has undertaken to provide universal education, such education becomes a right that must be afforded equally to both blacks and whites - under the Equal Protection clause.
Were the black and white schools "substantially" equal to each other, as the lower courts had found? In tangible factors, yes, the schools were substantially equal to one another. However, after reviewing psychological studies showing black girls in segregated schools had low racial self-esteem, the Court concluded that separating children on the basis of race creates dangerous inferiority complexes that may adversely affect black children's ability to learn. The finding of inferiority came from a "doll test. This test was designed by psychologists Kenneth Bancroft Clark and his wife, Mamie Phipps Clark in the 1940's to study the psychological effects of segregation on black children. In the "doll test," Kenneth and Mamie Clark used four plastic, diaper-clad dolls, identical in every way except for color. They showed the dolls to black children between the ages of three and seven and asked them questions designed to determine their racial perception and preference. Although all of the children readily identified the race of the dolls, when asked which they preferred, the majority selected the white doll and attributed positive characteristics to it. The Clarks concluded that "prejudice, discrimination, and segregation" caused black children to develop a sense of inferiority.
The "doll test" was heavily referenced in the Brown decision. Once the Justices accepted the results of the study, they concluded that the long-held 'separate but equal' doctrine did not address intangible factors that are important for education. The Court concluded that, even if the tangible facilities were equal between the black and white schools, racial segregation in schools is "inherently unequal" and is thus always unconstitutional. The unanimous opinion signaled the end for all forms of state-maintained or intentional racial separation. The remedy was to require all intentionally segregated schools to be desegregated. In the Brown II case a decided year later, the Court ordered the states to integrate their schools "with all deliberate speed." Note that the case didn't address geographical (or non-intentional) segregation. (But later cases would force a remedy on those situations as well).
Instead of relying on a discussion of the applicable law, the Warren Court appealed to sociological arguments about the adverse effects of segregation. The Court's argument in Brown was intellectually dishonest. It placed sociological evidence, and limited evidence at that, ahead of established law and legal reasoning in order to achieve the morally desired result. In order to blur distinctions based on race under the 14th Amendment, race itself had to be used as a criteria in the design of a remedy.
The Equal Protection Clause of the 14th Amendment had been construed by the Supreme Court as applying only to national citizenship, not state citizenship, as per the intent of the drafters at the time, and then affirmed in the Slaughterhouse Cases of 1873. In the majority opinion of that case, the Court also noted that the purpose of the Equal Protection Clause was to nullify laws that discriminated against blacks. The 14th Amendment guaranteed to blacks all the rights of national citizens, and prevented any state from passing a law that limited the rights of a national citizen. In Plessy, the Court reiterated the line of reasoning used in the Slaughterhouse Cases, adding: "The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either."
Section 5 of the 14th Amendment reads: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." The 1883 "Civil Rights" cases explained Section 5. These cases held that the 14th Amendment authorizes Congress to propose corrective legislation to penalize or counteract state legislatures that violate the Constitution with respect to the other sections, but does not allow Congress to pass general legislation on such matters. With Brown, the Supreme Court assumed that power to "correct" and that power of enforcement that Congress was denied. Brown put the Constitution on the side of racial equality and set into motion a series of decisions that would require almost anything to achieve that goal, even at the expense of breaking our own laws to do so. Brown ushered in an era of "activist" jurisprudence where the Court interpreted laws and the Constitution not according to established principles of construction, but according to the social agenda the justices sought to pursue in education. This analysis has nothing to do with whether the decision was right or not at the time, but is simply one that looks at the process of getting to that decision.
Another example is Green v. County School Board of New Kent County (1968), the Supreme Court case that held that "freedom-of-choice" school plans were insufficient to eliminate segregation. The Court was saying that there needs to be an affirmative plan to mix races in school districts. It was the Green case which prompted the Court to look for options on how to affirmatively and proactively integrate schools.
New Kent County had divested local boards of education of the task of assigning children to particular schools. Under the Pupil Placement Act, the authority to assign children was placed in a State Pupil Placement Board. Under the Act, students seeking enrollment for the first time were assigned at the discretion of the State Board and furthermore, students were automatically reassigned each year to the school previously attended unless, upon their application, the State Board assigned them to another school. White families almost uniformly chose schools that mostly whites attended and blacks almost uniformly chose the schools that mostly blacks attended. There was no forced segregation. For years, no student had applied for admission to another school under this statute (that is, no child applied for re-assignment). Nevertheless, the Supreme Court held that the plan was ineffective at desegregation and therefore violated the Constitution.
In Swann v. Charlotte-Mecklenburg Board of Education, in 1971, the Supreme Court endorsed forced bussing as an acceptable remedy to end desegregation in public schools. The school system may have violated the law, but the Supreme Court's remedy also violated the Constitution. It ordered the schools to make race-based decisions (exactly what segregation did in the first place). For every black student that was assigned to a different school, a white student had to be assigned as well. Its decision was to order discrimination against some to stop discrimination against others. The Court's intentions were good, but it still broke its own law nonetheless. The goal was social engineering. The goal was forcible racial quotas.
Swann v. Charlotte-Mecklenburg Board of Education (1971)
After the Supreme Court's decision in 1954 in Brown v. Board of Education, little progress had been made in desegregating public schools. One example was the Charlotte-Mecklenburg, North Carolina, system in which approximately 14,000 black students attended schools that were either totally black or more than 99% black - as a result of a desegregation plan that was approved by the District Court in 1965 (which was the year the lawsuit commenced). The judge upheld the desegregation plan because there was no requirement in the Constitution to act purposely to increase racial mixing. But something happened shortly thereafter... the Green decision. Swann therefore petitioned the Court for further relief based on the Greene decision which required school boards to come up with a desegregation plan that realistically works and erases any state-imposed segregation. (For years, the South resisted Brown's mandate to desegregate schools.