Tom Fitton, President, Judicial Watch
A core component of Judicial Watch’s mission is to monitor our nation’s judiciary and educate the American people about its operations. To that end, we have gathered a panel of distinguished experts to address the topic of “Defining ‘Judicial Activism’ in the Context of the Culture Wars.” For perhaps the first time in a generation, there is widespread public and political interest in the functions of the judiciary. The most obvious example of this renewed interest is ongoing national controversy over the use of the filibuster to hold up and defeat some of President Bush’s judicial nominations. You can bet a Supreme Court vacancy will only intensify the debate. But what is judicial activism and is it always a bad thing? A conservative may see judicial activism in a court that creates or expands a civil right, such as the recent same sex marriage ruling by the Massachusetts Supreme Judicial Court. A liberal may see an “activist court” as not activist at all, but as taking on the traditional role of the judiciary as interpreter of law for a society whose values change and evolve. The question for us all today is: can we come up a reasonably objective definition of judicial activism?
Paul Orfanedes, Director of Litigation, Judicial Watch
When Judicial Watch contemplated having an activism panel, it came up in the context of the 2004 Presidential campaign. The word “activism” was used quite a bit, so we started thinking, ‘One of the things Judicial Watch does is to monitor the functions of the judiciary. Is there some way that we can look at the term activism and try to come up with a real definition of what it means?’ Granted, it is a fairly amorphous term and perhaps it is just nothing more than a political epithet, but it would at least be an interesting discussion to have. Judicial Watch did come up with a few definitions, or perhaps ‘indicators’ is a better word: a ruling that overturns or invalidates a piece of legislation or an action of an executive branch official; a ruling that creates a new right, or expands on an existing right; a ruling that is based on an expansive reading of a text rather than a narrow if not literal reading of a text like a piece of legislation or a statute; or finally, a ruling that provides a remedy that exceeds what is necessary for a court to resolve the case at hand.
Kevin Ring, author, Scalia Dissents
Increasingly, the charge of activism seems to be simply to delegitimize a court decision with which one disagrees, but I think it has a better pedigree than that. It used to belong, primarily, to those of us on the right. We used to criticize decisions in which the court seemed to wade into the cultural wars on the sides of minority which is to say ‘unpopular interest.’ Not only did the courts seem to be riding roughshod over the will of the popular majority, at least as reflected in its popularly democratically elected laws, it did so with very little support from the text of the Constitution in many cases. For conservatives, not only did Roe v. Wade overturn the abortion laws of 50 states, it did so without any grounding, the text of this Constitution, or the legal or the social traditions of the country. It seems to me that both of these components were critical to the charge of activism. The reversal of democratic judgements and the lack of textural or historical support.
Jonathan Turley, Shapiro Professor of Public Interest Law, George Washington University Law School
I tend to view judicial roles as very narrow, and so I think the judges add too many sweets to most of their opinions. One person that meets my definition of judicial activism is Sandra Day O'Connor. I do not see any evidence that she cares a whit about the law or precedent. The reason I consider her an activist is that it is clear to me that O'Connor begins every decision first deciding where she wants to come out. If she has to leave huge gaps or burning buildings in her path, she will. If she has to make up a test, she will. If she has to ignore a test, she will. To me that is a judicial activist. The test of principle is ending up in a place you do not want to be, to be honest to precedent and honest to doctrine, even when it takes you to a place you do not want to end up. That is the test of principle and that is why judicial activism is not just a liberal issue. Liberals and conservatives engage in activism.
Patrick Fagan, FitzGerald Research Fellow on Family and Cultural Issues, the Heritage Foundation
In the year 2000, for every one hundred children born into this country, only forty reached maturity living with Mom and Dad. This means sixty do not. In the intervening years, from 1950 to the year 2000, we had a number of decades during which abortion became a major phenomenon within the sexual and family set-up. If you add that into the mix, in the year 2000 for every one hundred children conceived, only twenty-eight reach maturity living with their mother and father. What we have put in place here with the aiding, abetting and the action of the courts, is a culture not of belonging in family, but of massive rejection leading to a total disorder and mayhem in our social relationships. Now is the court the only actor there? No. I do not want to say that….but the courts are major participants in this insanity.
J.B. Raskin, Professor of Constitutional Law, American University's Washington College of Law
Since the idea of judicial activism is inherently incoherent and ambiguous, we should not want to ask whether a decision is activist or not, but whether it is correct and this forces us to articulate our theory of constitutional purposes, meanings, interpretation and construction. The real difference today is between liberal justices who want to read the Constitution as a social contract for democratic self-government that establishes the primacy of rights over powers; and conservative justices who want to read the Constitution as a contract for state-based political arrangements that establishes the primacy of governmental powers and social traditions over citizen rights. Scalia, for example, when it comes to interpreting equal protection or due process, says that the only rights that people have are those that existed as social traditions at the time the 14th Amendment was added to the Constitution. This, to me, defies the whole notion of a democratic Constitution, which means to destabilize and replace social traditions that oppress and violate the individual rights of the people.