Activist Justices

For decades, the Republican party has made the case that legal matters were being abused and twisted by what they called "activist judges." That is, judges who would, rather than decide a lawsuit on its legal merits or lack thereof, decide it to favor their own ideological preferences.

That was all bullshit, of course. The "activist judges" line was nothing more than Republican propaganda, a talking point to be interjected whenever possible during the Sunday shows and floor speeches and campaign rallies. It was employed to object to, and stoke public opinion against, judicial rulings that didn't favor the Republican ethos of unregulated greed—whether that be economic greed, sociopolitical greed, or the power-based greed of white supremacists.

Judicial activism as a term isn't new or restricted to use by Republicans, but in its use as a dishonest avenue for grievance it is. Nixon used it to complain that courts were "too lenient" on criminals and by implication that Constitutional and legislative protections didn't apply to all. Reagan one-upped Nixon by claiming that "activist judges" weren't just too lenient on criminals, but that they caused crime: "The rise in crime was not an unavoidable accident; it didn't just happen. It was the result of a liberal social philosophy that endorsed and supported leniency in the courtroom ... the result of judicial activism: judges who thought it was their right to make the law, not just interpret it; judges who fashioned new rules that were a catastrophe for law-abiding citizens, new rules that made it harder to convict even the most hardened and obviously guilty criminals." In their minds, or at least in their words, these paragons of Republican dogma resented that Constitutional and legislative protections weren't ignored in some cases. Now, one can certainly argue about the merits of such protections and whether or not they're a good idea, but they do exist and calling judges and justices that fail to ignore them "activist" is disingenuous at best.

Felon47 has taken it to a new level, of course. He decries anything he doesn't like as "illegal" and has abused the Department of Justice in ways that should be intolerable but somehow have been tolerated. That includes multiple accusations that judges have decided against his preference out of activism, labeling them "Obama judges" or "Biden judges" to imply they decide cases as partisans.

As with many Republican criticisms, however, it's important to remember one of their most favored public relations tactics: Accuse your opponents of your own misdeeds. For as we have seen with Chief Justice John Roberts' Supreme Court, it is the Republican party and their adherents that actually employ judicial activism.

The Roberts Court has been so activist that it has upended many aspects of our society. To date, its decisions have included:

• Support of inequality by ignoring facts in gender-discrimination cases, including one that led to the Lily Ledbetter Fair Pay Act that clarified that SCOTUS' decision in Ledbetter v. Goodyear was a misinterpretation of law;
• Ruling against the First Amendment principle of separation of church and state on numerous occasions, sometimes in direct contradiction to SCOTUS precedent;
• Expanding the definitions of the Second Amendment well beyond its Constitutional language in order to repeatedly strike down gun control laws in non-Federal jurisdictions;
• Curtailing the ability of government agencies to enact environmental regulations because "to impose billions of dollars in economic costs" was too severe a consequence for mitigating the actions of polluters who poison the public and the planet;
• Inconsistent rulings in gerrymandering cases, supporting those favoring Republicans and denying those favoring Democrats;
• Favoring so-called "reverse discrimination" claims by white litigants claiming racial bias against them even when such arguments were obviously suspect;
• Erosion of voting rights whenever an opportunity was presented, often attempting to legitimize unsubstantiated claims of "fraud" brought by Republican officials;
• Overturning Roe v. Wade and allowing the criminalization of abortion;
• The destruction of campaign finance regulation, declaring money to be "speech" and corporations to be "people" in a legal sense, unleashing limitless dark money into elections in Citizens United v. FEC, a ruling that Justice John Paul Stevens in dissent characterized as outright activist as it went beyond the issues of the case, saying the majority "changed the case to give themselves an opportunity to change the law";
• Granting immunity from prosecution to the President of the United States for anything done in "an official capacity";
• Repeated guttings of the Civil Rights Act of 1965 and the Voting Rights Act of 1965, including, but by no means limited to, yesterday's decision in Louisiana v. Calais, which "renders Section 2 [of the Voting Rights Act] all but a dead letter," according to Justice Kagan in dissent.

John Roberts and his fellow conservative Supreme Court Justices have chosen again and again to twist the language of legislation and the Constitution into pretzels in order to advance their ideological agenda—an agenda that is racist, sexist, classist, pseudo-Christian, partisan, business-centric, anti-environment, and with the presidential immunity ruling approaches totalitarian—regardless of the law.

If Congress was a healthy, functioning body, at least four of those Justices, including Roberts, would be impeached and convicted for betraying their duties, corruption, and perjury. Further, in light if the long tenure of abuse by this court, major reform needs to be enacted.

Franklin Roosevelt had issues with the SCOTUS of his time, running into opposition of the New Deal from Justices determined to thwart it. "We have reached the point as a nation," FDR said in 1937, "where we must take action to save the Constitution from the Court and the Court from itself." I'd argue that Roosevelt's comment is more true now than it was then.

But what action should we take? How do we save the Constitution from the Court and the Court from itself? Term limits? Maybe, though I would allow for renominations when terms expire. Constitutional Amendment? Putting aside the difficulty of enacting one, what would it say? "Justices of the Supreme Court must limit themselves to working within the law and not legislate from the bench?" That's weak tea, for sure. Oversight? For sure, though it can't be left to Congress, we see today how feckless that body can be; besides, the Supreme Court is supposed to be, well, supreme. But some sort of enforceable code of conduct, clear penalties for dereliction of duty, clear restrictions on the court's ability to exceed the parameters of a case, this seems necessary... somehow.

Theoretically, this sort of thing is handled in advance by confirmation hearings and remedied by impeachments. That theory has been blown out of the water, though. Doesn't work. Congress is too vulnerable to corruption itself and too feckless to hold Justices accountable. I just don't know what remedy to propose. For the gerrymandering stuff, laws can be passed to outlaw partisan gerrymandering and require independent, non-partisan commissions to map districts. But for the rest...?

Any ideas?