Supreme Court Watch: "Activist" Judges

All right, class, here is your citizenship quiz. Who said the following:
"Whosoever shall be guilty of rape, polygamy, or sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting through the cartilage of her nose a hole of one half inch diameter at the least."
I'll give the answer a little later, after I show why I asked the question.

It's the season for hiring new Supreme Court justices, and the job description is on everyone's mind. In particular, Bush and company insist that the Supreme Court, and lower courts as well, be free of "activist" justices who "make new law from the bench."

"Activist" can mean several things, depending on what it is contrasted with.
In the most important sense, "activist" judges are opposed to "strict constructionists" or those who adhere to "textualism" or "original intent." The latter are said to look to the actual words of the Constitution, or when those words do not decide the question at hand, they look to the intent of the Founders who wrote the words. Activists, by contrast, are said to disregard the wording of the Constitution and the Founders' intent in order to implement their own views (e.g., in allowing for regulation of industry or environmental protection laws, to give just two of many possible examples).

In a second sense, an "activist" judge is one who is too disposed to override the will of the Congress, the states or the President.
In a third sense, an "activist" judge is one who tends to disregard precedent in favor of his or her own views.
So here is our first question: Should Supreme Court Justices strictly adhere to the text of the Constitution in making their decisions? (And should Justices be criticized for going beyond that text?)

Let's take an example: "cruel and unusual punishment," prohibited by the Eighth Amendment. What kind of punishment is cruel and unusual? (Beheading? Death penalty in general?) The Constitution doesn't say, so if we're going to adhere to that document, we'll have to look at what the Founders intended. This may seem perfectly reasonable -- but is it?

Here enters the answer to my question: The author of the passage quoted is none other than Thomas Jefferson. (Source: Henry Adams and The Making of America by Garry Wills, p. 399.) Jefferson was a leading Founder, of course, and he clearly did not believe castration and mutilation to be cruel and unusual punishment. Do you agree with him? If not, you're in no position to say that our present Justices should follow the intent of the Founders.
In all, there are at least three reasons for disregarding the Founders' intent:
1) We don't know what the Founders' intent was, either because we don't have the required information, or because different Founders had different intentions but agreed on specific language, hoping that their disagreements would be ironed out afterward. Or:
2) We can't know what the Founders' intent was, because the case at hand involves conditions that were not in existence when the Constitution was written (e.g. biotechnology). Or:
3) We don't want to know what the Founders' intent was, because their intent is morally repugnant, as in the case of Jefferson's view on punishment. In fostering myths about the Founders, we forget how imperfect our government was at the beginning - it condoned slavery, excluded women from most important areas of life, etc. etc. We have progressed, but we deny our progress if we slavishly try to enshrine the views of the Founders in our present-day policies.
So it is futile and foolish to focus on the wording of the Constitution or the intent behind that wording.
But if the function of the Court is not to faithfully apply the text of the Constitution, then what is its function?
Its proper function is to apply the purposes inherent in the Constitution. To get a better grasp, let's look at an analogy from sports.

Each sport is driven by a purpose, or better, a bundle of purposes. The purposes of baseball are to compete in hitting, pitching, catching. running, etc. The purposes of football include competition in running, throwing, catching, and - unlike baseball - overcoming one's opponent by force, though only in limited ways. And so on.

In baseball, deceiving the opponent is not a basic purpose. It is allowed - indeed, it's inevitable -- when it's an intrinsic part of some activity (e.g. the pitcher deceiving the batter about the location of the pitch). But it is not allowed when it would interfere with some basic skill such as base-stealing. This is why baseball has the balk rule, without which base-stealing might be next to impossible.

The balk rule is a bundle of specific rules minutely describing what the pitcher may and may not do when delivering a pitch with a runner on base. It has evolved for the purpose of preventing excessive deception on the part of the pitcher (the major league rule book declares that "Umpires should bear in mind that the purpose of the balk rule is to prevent the pitcher from deliberately deceiving the base runner.") But it is still imperfect. In particular, it has a complexity that some umpires find maddening.
When we look at the balk rule we see an imperfect attempt to realize the purpose of preventing excessive deception on the part of the pitcher.
Likewise, when we look at the U.S. Constitution we see an imperfect attempt to realize a certain set of purposes which I will attempt to describe shortly.

Of course, the difference is that the purposes of baseball spawned the balk rule, and the other rules of the game, without the benefit of anything like the U.S. Constitution. (In this respect, baseball is comparable to the British government, with its "unwritten Constitution.") By contrast, the purposes of the U.S. government, for historical reasons, were codified in our Constitution. (We can look at the Constitution as the first codification, with the various precedents set down by the Supreme Court as succeeding codifications.)

Some parts of the Constitution are specific (terms of office, for example), but other parts are expressed in vague and general language, as we have seen in the case of "cruel and unusual punishment." Rather than prescribing specific policies, these provisions indicate purposes to be pursued or features that government ought to embody.
The most significant purposes or features of government, as I see them, are these:

Limitation on the power of the government over individual thought and expression, including limitations on the power of majority rule. Likewise, limitation on the power of government over individual actions that do not affect others.

Protection from the arbitrary exercise of governmental power (rule of law), which implies that force shall be used only as far as necessary to achieve proper purposes.

Equality of treatment, based solely on being a human being and a citizen.

Division of power within the government (checks and balances).

Federalism: division of power between the state and national government, with local affairs governed largely by the state, and matters pertaining to the entire country (e.g. printing money), performed by the national government. In addition, regulation by the national government of relationships among states when that is necessary for justice or the welfare of all (e.g. to avoid a "race to the bottom.")

Democracy: Majority rule, within the constraints implied above.

Promoting the general welfare, within the constraints implied above.

These, as I see it, are the major purposes inherent in the Constitution, the ideals that the imperfect formulations in that document are striving to realize.

The function of the Supreme Court, then, is to apply the purposes of our government to the various situations they are presented with. This is not a matter of discerning the Founders' biographies nor of reading their minds. Rather, it is essentially a logical procedure, going from basic purposes to particular judgments. (Note the "essentially." There are qualifications which I will get to soon.)
Does this mean that the Justices are creating new law? Well, is little Johnny creating new laws of arithmetic when he multiplies 42 by 65? Of course the comparison is inexact, because interpreting the Constitution, unlike doing arithmetic, involves factual considerations. But in both cases, the individual is drawing out the consequences of basic premises - in the case of Supreme Court Justices, the premises are the purposes of government; in the case of Johnny, the premises are his elementary "arithmetic facts."
I said that the process of going from basic purposes to particular judgments is a logical one, but with qualifications, for there is much room for individual interpretation. To begin, what exactly are the proper purposes of government? (E.g., to what extent should the majority govern individual behavior?) I specified my list, but others might have their own reasonable views. The answer a judge gives will depend on his or her conception of justice and proper government. (But note that the leeway is limited. No one could argue, for example, that the Constitution and its purposes allow for a Fascist government.)

There is also the question of how a particular purpose or set of purposes is achieved in the situation at hand. This involves factual beliefs within fields such as economics. (E.g., how well does the free market function?)
So in the final analysis, any reasonable judgment will depend - in the nature of the case - on the judge's views concerning justice and the workings of society.

Now we can briefly look at the other two senses of "activism." The second of the three is a refusal to defer to Congress, the President and the state legislatures. Whether or not judges are "activist" or deferential will depend on their view of individual rights, since the Supreme Court is the supreme defender of rights. The stronger his or her belief in individual rights, the more a judge is likely to override the states and the other branches as they try to infringe on those rights. Again, it's a matter of the judge's view of what is just.

The third sense of "activism" is a tendency to ignore precedents. To some extent this will depend on how cautious a judge is. But to a large extent it will depend on his or her view of how the world ought to be; the more that view departs from what precedents have prescribed, the more the judge will be willing to override them.

So if I were questioning a Supreme Court candidate, I would ask for his or her views on justice and the proper power of government (not to be confused with the candidate's views on personal morality). I would ask how much he believes an individual should be made to toe the line set by the majority, for example, and what his conception of equal treatment is. I would ask the candidate's views on the virtues and evils of the free market, and how the market needs to be regulated for optimal effect. And so on. For it is from such views that a judge's opinions will spring, if they are to any degree reasonable.

As for "activism" and its opposites, I would pay little attention to these terms, for their only use, if they have any use at all, is to serve as a smokescreen on behalf of the status quo or those who hold power.
Read More on Minding the Issues
Volume 1, Issue 5, Posted 08.14 AM / 22nd August 2005.