Utah Bar Journal

That federal judicial nominations are political in nature is hardly news, although such nominations invariably raise the political issue of "judicial activism." Even in states where elected judges generally do not decide political questions, battles frequently occur over judicial office. The emergence of tort reform as a viable political issue proves that even the common-law system of civil justice is not immune from politics.

Mr. McKinney begins his article by using a non-legal phrase, "judicial activism," which clearly suffers from a lack of consensus as to its definition. However, he is quick to polarize the issue, by referring to "those in favor of judicial activism." Who are "those?" The authors decried by Judge Bork, Justice Scalia and other members of the Federalist Society? The failure of the author to define a critical phrase, "judicial activism," is fatal to his thesis because, as with any phrase, it can mean whatever the writer wants it to mean.

Contextually, the judicial activism outlined in Mr. McKinney's article appears to refer to judges who have interpreted the Constitution in a manner offensive to political conservatives. The purpose of this article is to illustrate the problems inherent in defining judicial activism, how amending the constitution in the manner suggested by Mr. McKinney is unworkable and will have potentially disastrous consequences, and the dangers of labeling judicial review as "tyranny."

Articulating the Problem and Defining "Judicial Activism"
One reasonable and quantifiable measure of a judge's activist tendencies was identified by Professor Paul Gewirtz of Yale Law School: How often has each justice on the Supreme Court of the United States voted to strike down a law passed by Congress? "So Who Are the Activists?" New York Times, July 6, 2005. After examining the sixty-four (64) Congressional provisions upheld or struck down, it was found that Justice Clarence Thomas, appointed by President George H.W. Bush, voted to invalidate 65.63% of those laws, more than any other justice. He was followed by Justices Kennedy (64.06%), Scalia (56.25%) and Rehnquist (46.88%).

Least likely to invalidate legislation were two appointees of President Bill Clinton - Justices Stephen Breyer (28.13%) and Ruth Bader Ginsburg (39.06%). Why is it, then, that the judges least likely to vote to overturn Congressional statutes are generally considered the most activist? By this objective measure, it appears that judges most would consider politically conservative are among the most activist.

Noticeably absent from Mr. McKinney's article is a specific analysis of the problem as articulated. Divorcing the language of the Constitution from "an idea, a set of principles, a penumbra or an emanation" was not intended by the framers of the Constitution and is contrary to the idea of a democratic society.

That this approach is politically motivated is obvious from the comment that the federal courts "expand these rights beyond the fair reach of the text." Who decides what is the fair reach? A study of decades of constitutional law illustrates that the Supreme Court is not "creating new rights," but enforcing those rights guaranteed by the Bill of Rights. As with use of the word tyranny, characterizing a well-reasoned body of jurisprudence as the "creation" of rights is pejorative, and is factually and legally incorrect.

The Constitution cannot be viewed in a vacuum and there are many rights we possessed when this country was founded that are older than the Bill of Rights. In the landmark case of Griswold v. Connecticut, 381 U.S. 479 (1965), for example, Justice Douglas wrote that "we deal with a right of privacy older than the Bill of Rights." 381 U.S. at 485 (emphasis added). Of a practice neither mentioned nor implied in the Constitution, Justice Warren wrote, "Marriage is one of the basic civil rights of man fundamental to our very existence and survival." Loving v. Virginia, 388 U.S. 1 (1967) (emphasis added).

Concluding his assessment of the condition, Mr. McKinney states that the Supreme Court has, "in selected areas of law," enforced a politicized interpretation of the Constitution. What areas? He refers to "astonishingly unsupported decisions." What decisions? I suppose if one is looking for a clearly astonishing and unsupported political case of judicial activism, she or he might consider Bush v. Gore, 531 U.S. 98 (2000).

I find it interesting and ironic that, while attempting to divorce the language of the Constitution from just about everything, Mr. McKinney can unilaterally label the Constitution as "positive law" and mandate a framework in which it is to be interpreted. If the framers of the Constitution had intended the document to be interpreted in a manner different than the common-law principles used at the time, then one would expect that they would have so stated in the document.

However, suggesting that the Constitution is to be interpreted in one rigid manner is also judicial activism of a different strain. It is the type of judicial activism guaranteed to perpetuate the denial of individual rights, as history has taught.

The Proposed "Constitutional Solution" is Unworkable and Turns Back the Clock on Years of Constitutional Progress
Mr. McKinney proposes a drastic remedy for this amorphous and ill-defined problem - amending the United States Constitution. Rather than a specific textual analysis of the proposed amendment, I would like to address how the amendment would work within the framework and context of decades of Supreme Court decisions and jurisprudence.

Our analysis begins with the plain language of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and petition the Government for a redress of grievances.

The "plain language" of the First Amendment is absolute: Congress may not make any law which abridges the "freedom of speech." Under Mr. McKinney's proposed constitutional amendment, speech which incites violence or published pornography would be completely unregulated.

Consider the holding of Schenck v. United States, 249 U.S. 47 (1919). In a what some might now argue was a blatant act of judicial activism, Justice Holmes wrote an opinion upholding a law which clearly violated the First AmendmentÕs absolute and unambiguous guarantee of free speech and press. Without citation to any authority, Justice Holmes wrote:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.

249 U.S. at 52. Continuing this unabated activism, he wrote that the question in any given case was whether the words used were of such a nature as to "create a clear and present danger." Id.

In present days, however, we hear little about this ongoing aspect of judicial activism. Why? Because it is judicial activism with which many political conservatives would agree. The same might be said for regulation of obscenity and broadcasting.

The Second Amendment contains similarly absolute language:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Notwithstanding any debate over the meaning of the first clause of this amendment, the plain language of the second clause, once again, is absolute. No conditions or qualifications are placed on the "right of the people to keep and bear arms." Thus, under the proposed constitutional amendment, a fifteen year old "Crips" gang member in southern California is permitted to possess and carry a fully automatic AK-47 assault weapon.

Regulation of interracial marriage would certainly be permitted. In Loving v. Virginia, supra, the State argued that, when the Fourteenth Amendment was adopted, any intent was not to make state miscegenation laws unconstitutional. 388 U.S. at 9. Rejecting this argument, the Court wrote that it did not pertain to the "broader, organic purpose of a constitutional amendment." Id. After a thorough review of the legislative intent of the Fourteenth Amendment, the Court found that the historical sources were, at best, inconclusive.

Under the proposed amendment, there would not be any constitutional limitation on state regulation of the right to marry, because the right is not mentioned in the plain language of the Constitution. The same is probably true of the right to travel. See, e.g., Foster v. Dulles, 357 U.S. 116 (1958) (recognizing right to travel as part of liberty interest recognized under Fifth Amendment).

The notion that these precedents are immune from immediate reach under the principle of stare decisis is hard to swallow, although it is ironic that, while decrying the use of common-law principles of statutory interpretation on the one hand, Mr. McKinney retreats to the common-law principle of stare decisis on the other. The Constitution does not contain any plain language requiring courts to follow precedent.

If any conclusions may be reached from an analysis of the Bill of Rights, it is perhaps that the framers of those broad statements intended the Constitution to be a living, breathing document designed to adapt to the ever-changing conditions in which we live. While the Constitution is, simply put, words, those words cannot be interpreted in the vacuum Mr. McKinney suggests. Application of the plain language doctrine to the Bill of Rights would have, and has had, exceptionally disastrous consequences.

Another blatant act of judicial activism is Brown v. Board of Education, 347 U.S. 483 (1954). Mr. McKinney's proposed constitutional amendment mandates that courts may not interpret laws "in any manner contrary to its plain meaning, as generally understood at the time of enactment." The Supreme Court expressly rejected this approach in Brown, with Justice Warren writing, "we cannot turn the clock back to 1868 when the [Fourteenth] Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written." 347 U.S. at 492. Instead, the Court said:

We must consider public education in the light of its full development and its present place in American life throughout the Nation.

347 U.S. at 492-93. As with Justice Holmes' opinion in Schenck, there was no citation to any authority to justify this analysis.

Are there any among us prepared to turn back the clock on basic constitutional issues, long decided, because of the current political tide? Probably not. Brown was a blatant and shameless act of judicial activism, for which all Americans should be thankful. See, e.g., Colbert I. King, "Judicial Activism to Be Thankful For," Washington Post, Oct. 29, 2005, A23. Thanks to judicial activism, people of all colors can sit anywhere on the bus, people are free to marry without regard to race, evidence obtained as a result of police misconduct is inadmissible in court proceedings, persons accused of crimes are provided with a lawyer if they cannot afford one and citizens are guaranteed rights to the fullest extent possible.

If judicial power is restricted, any power removed will necessarily revert to the federal and state legislatures. Our constitutional rights, at that point, would depend upon elected politicians for their protection, as the courts would be mandated to uphold those laws. Instead of the consistency provided in our current scheme, our rights would necessarily depend, at any given time, on the majority ruling party. Indeed, I cannot recall hearing about the evils of judicial activism when the current majority party was the minority party.

The Dangers of Labeling Judicial Review as Tyranny
Finally, I am compelled to comment on the highly pejorative nature of Mr. McKinney's primary thesis. He immediately labels the judicial system as tyranny and makes the outrageous claims that "tyranny is eroding democracy" and replacing it with "judicial oligarchy." Apparently, that the judiciary does not meet a definition chosen from Funk & Wagnall's places it in the category of the tyrants of ancient Greece and the despots of the modern world.

The word tyrant comes from the Greek tyrannos, and means a usurper of rightful power, possessing absolute power and ruling by tyranny. Instead of using this traditional definition, or a common definition, Mr. McKinney uses and misconstrues a particular definition to support his argument. The judiciary does not have "absolute power," as that term is used to define tyranny. And the "legal warrant" of which the definition speaks is clearly granted to the federal judiciary by Article III.

A better question is why Mr. McKinney and others choose to label our judges as tyrants.

The current connotation of a tyrant is that of a despot, such as Saddam Hussein, or a government ruled by a single leader with absolute authority. Tyranny suggests a government with absolute authority over its citizens. Defining the judiciary with these characteristics is quite telling; Mr. McKinney is not really making an argument, but seeking an emotional response.

Equivocating the judiciary with the political concept of tyranny is not only factually incorrect, but is a fear appeal designed to last long enough to permit the ruling party to effectuate an overly broad and restrictive response. Ironically, the use of such fear appeals is used to justify tyrannical rule. A quick Internet search of the term "judicial tyranny" quickly leads the reader to articles by Executive Director of the American Conservative Union, articles in the New American, the web site of Focus on the Family, and articles by Armstrong Williams and Ann Coulter, all very conservative political organizations and writers.

It is shocking to suggest that we live under tyrannical rule; we do not. Judicial activism is not a form of tyranny, but a pejorative label used to distinguish judges and judicial opinions with which we do not agree. It is neither a philosophical concept nor a legal concept, but a non-legal political concept that changes with the winds.

The suggestion that those who favor a "continually expanding Constitution simply do not like, or do not trust, democracy," is offensive and belies the political nature of Mr. McKinney's thesis. The clear implication is that those who favor the present system are, apparently, undemocractic. For the reasons outlined in this article, I decline to make the same conclusion.

In a democratic society, we cannot maintain a system which establishes and recognizes basic rights, but then allows certain rights to be discarded or altered based upon the whims of the ruling party. You cannot pick and choose fundamental rights in a free society. While the concept of judicial tyranny is not often seen in the literature, the concept of tyranny of the majority has long been recognized contrary to democracy.