Judicial activism

July 8, 2002 11:24 AM

Judicial activism rears it's ugly head. But it is disingenuous to claim that activism is the mantle of liberals. Can you say "strict constructionist?" I didn't think so.
posted by nofundy (11 comments total)

Another great article on the subject:
http://www.washingtonmonthly.com/features/2001/0207.johnsen.html
posted by nofundy at 11:37 AM on July 8, 2002

Judicial activism is improper whether coming from the left or the right. The judge's role is to interpret the law, not make it. Nonetheless, judicial activism is seen far more often by liberal judges -- mainly because by and large conservatives (by definition) seek to defend the status quo.

But I think this article gets off base when it cites Owen's abortion opinions as evidence of activism. There is a very good argument to be made that Roe v. Wade was the very model of judicial activism. Try as you might, you won't find the word "abortion" anywhere in the constitution -- nor will you find any mention of a "right of privacy." In order to find abortions constitutionally protected, Justice Blackmun had to claim that there is something called a "penumbra" of privacy in the constitution. A penumbra is an outer shadow (usually in connection with the sun). Justice Blackmun was thus giving himself the ability to discern this "penumbra" -- this shadow of an idea -- between the lines of the constitution. Lots of people -- liberal and conservative -- have criticized this as the consummate act of judicial activism, and noted (correctly) that if such activism is allowed five judges can essentially amend the constitution.

A lot of people -- including myself -- kind of scoff at the logic of the decision, but aren't so troubled because we agree with the ultimate result. Others who don't agree with the result not only scoff at the logic, but want to see it limited (or better yet reversed). I suspect Judge Owens' abortion decisions are not activist, but rather the opposite -- arising from the belief that the constitution does not prohibit states from addressing the issue themselves, notwithstanding what Blackmun, Brennan, Marshall, Powell, Burger, Stewart, and Douglas believed.
posted by pardonyou? at 12:39 PM on July 8, 2002

A penumbra is an outer shadow (usually in connection with the sun).

If memory serves, the right to abortion came from the "emanations" of the penumbra right of privacy. Which is amusing, in a grammar-geek sort of way, since the one thing we know about penumbra's is that they don't emanate anything.
posted by gd779 at 12:53 PM on July 8, 2002

Justice Blackmun did not "claim" that there is a "'penumbra' of privacy in the constitution." The idea had already been suggested by Justice Harlan in Poe v. Ullman and accepted by the Court in Griswold v. Connecticut. The right to privacy was inferred from a series of cases discussing the effects of the First, Third, Fourth, Fifth, and Ninth amendments. You might disagree with the reasoning in Roe, but it wasn't a giant leap from Griswold.
posted by subgenius at 1:26 PM on July 8, 2002

Actually subgenius, he did "claim" there was a penumbra. I didn't say he was the first to make such a claim. And while Harlan may have been the first to make the claim, Douglas is definitely the one who took the ball and ran with it. Blackmun just happened to be the one that carried it into the end zone. [/football metaphor]
posted by pardonyou? at 2:26 PM on July 8, 2002

Perhaps this was the case being referred to:

...In one case, Justice Owen dissented from the court’s decision that a college-bound high school senior was sufficiently mature and well informed to have an abortion without notifying her parents. Justice Owen upbraided the majority for issuing its decision on an expedited basis but then acknowledged that the pregnant girl, who had already endured over a month of court proceedings and was in her fifteenth week of pregnancy when the court finally allowed the abortion, had written on her appeal "ATTENTION CLERK: PLEASE EXPEDITE." In response to the majority’s argument that it had to act quickly because "Doe might 'be able to undergo the less risky suction curettage procedure,'" Justice Owen argued that since it might already be too late for the procedure, there was "absolutely no indication from any source that issuing a decision on March 13 or even 14 or 15 would have placed Doe in any greater risk." President Bush’s legal advisor, White House Counsel Alberto Gonzales, who was a Texas Supreme Court justice at the time this case was decided, called Justice Owen’s opinion "an unconscionable act of judicial activism."

I think the bottom line here is less "activism" than "taking a defendant's word for it in a medical case" insensitivity.
posted by kablam at 6:30 PM on July 8, 2002

pardonyou, I agree that Roe and the other privacy cases are good examples of judicial activism. But on the other hand, its one thing for the Supreme Court to come up with a novel interpretation of the constitution and quite another for a state court judge to ignore controlling legal precedent direct from SCOTUS.

Also, it is definitely the conservatives that have become the judicial activists in the last ten years or so. Scalia and co.'s interpretation of the 11th amendment is at least as bizarre (and textually indefensable) as Roe and Casey's interpretations of the due process clause of the 14th amendment (unlike Griswald, Roe was not based on the fouth amendment as suggested above, btw).

In addition, in the last eight years, conservatives on the court have radically limited Congress's power to pass laws under the commerce clause (Lopez, Morrison) and the enforcement clause of the 14th amendment (City of Boerne). They have limited Congress's power to regulate state governments directly (US v. New York) and they have interpreted the texts of numerous civil rights statutes in ways that limit their scope far beyond what Congress intended (Circuit City, Echazabal, Williams). The liberals did all their judicial activism back in the 50s and 60s. Brown v. Board was probably their crowning achievement (an absolutely wonderful decision that also happens to be unabashed judicial activism with practically no persuasive legal reasoning in the entire document).

also, on a side note, if Roe v. Wade was ever reserved, it would be the worst thing to happen to the conservative movement since FDR. The conservatives on the court couldn't actually ban abortion around the country by judicial fiat without abandoning everything they've ever believed in about federalism as well as directly contradicting their own previous statements on the subject. Congress couldn't ban abortion across the country without running afoul of SCOTUS's new restrictions on congressional power in Lopez and City of Boerne. As a result, all the abortion activists would have to revert to fighting it out in state legislatures and would accordingly pull their resources out of federal politics in order to elect pro-life state legislators. And in the end, I doubt many states outside of the deep south would actually ban abortion outright while the Republicans in Congress would lose a MAJOR issue to energize their grassroots with. It would be the ultimate Pyrrhic victory for the right.
posted by boltman at 11:56 PM on July 8, 2002

pardonyou?: Your use of "claim" implied that the assertion was open to dispute. Maybe you would describe every statement in a judicial opinion as a claim, but I think it is better used for non-binding opinions (e.g., Justice Harlan's dissent in Poe) than for something that was already accepted by the majority of the court well before Justice Blackmun wrote Roe--not to mention something that continues to be accepted and applied even by jurisprudes like Justice Scalia (discussing unenumerated fundamental rights in Michael H.) and Justice O'Connor (saving the day in Casey). Justice Blackmun's opinion in Roe may have been too far in front of the American people, but it was a logical extension of the cases that preceded it.

Now if we want to talk about judicial activism, let's look at what the Supreme Court has been doing with the Eleventh Amendment.
posted by subgenius at 12:07 AM on July 9, 2002

Wasn't roe vs. wade considered a loss in feminist circles around the time? I think that the women's movement considered the state-imposed limits on freedom a major step backwards. Prior to Roe vs. Wade there wasn't as much a ban on abortion as there was a lack of ruling on the matter.

A friend of mine runs a non-profit that is dedicated to providing financially for women who do not have access to abortion The Lilith Fund. The project was started after a college student, Rosie Jimenez, died from an illegal abortion - after abortion Roe vs. Wade.

The cost of an abortion, the travel time (coming from those states where there are no doctors willing to perform an abortion is akin to not having access to abortion), and the danger associated with performing abortions for doctors, makes it difficult for a lot of women to get abortions, even when it is medically necessary.

Abortion activism comes in a lot of forms; eliminating federal assistance, and making it a dangerous practice for doctors has had an enormous effect on the availability of safe abortions in this country.
posted by goneill at 5:24 AM on July 9, 2002

Boltman: Regarding the Fourth-Amendment basis for the right to privacy, I was referring to Poe and Griswold. In any case, Part VIII of Roe does touch on the Fourth Amendment, although it is obviously less apposite than it was in Griswold or the other contraception cases.
posted by subgenius at 6:41 AM on July 9, 2002

sorry subgenius, i read your post too fast.
posted by boltman at 9:55 PM on July 9, 2002