I am always mystified when polls show that most Americans don’t even consider judicial appointments when they vote. They don’t realize that the judiciary can change America profoundly. And they also don?t realize that, despite campaign rhetoric and talk radio sound-bites, the choice is not between "liberal" judges and "conservative" judges. In the world of Rush Limbaugh and Michael Moore, the terms liberal and conservative have become insults; they have lost whatever analytical meaning they ever had, and they definitely don’t help us understand the judicial choices confronting us.
I am always mystified when polls show that most Americans don’t even consider judicial appointments when they vote. They don’t realize that the judiciary can change America—profoundly. And they also don’t realize that, despite campaign rhetoric and talk radio sound-bites, the choice is not between “liberal” judges and “conservative” judges. In the world of Rush Limbaugh and Michael Moore, the terms “liberal” and “conservative” have become insults; they’ve lost whatever analytical meaning they ever had, and they definitely don’t help us understand the judicial choices confronting us.
Americans have always heard accusations about “judicial activism.” As Jon Stewart has noted, ‘judicial activism’ is what has happened when you don’t like a particular decision. It is used when a court ruling is unpopular—when a majority of citizens don’t like it. The problem is, that isn’t usually “activism”—it’s judging. Federal courts are supposed to apply the Constitution and the Bill of Rights, and the Bill of Rights was designed to be a counter-majoritarian document—to be a libertarian brake on the power of the majority. The Founders of this nation were profoundly suspicious of what they called “the passions of the majority,” and they crafted a system meant to restrain those passions—a system where my neighbors don’t get to vote on what books I read or what church I attend. As Justice Jackson famously said, ““The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote: they depend on the outcome of no elections.”
The proper inquiry, then, is not whether a judge will be “activist,” but whether he/she will be the right kind of activist, which is to say, faithful to the Constitution and the Bill of Rights. That, of course, gets us into arguments about Constitutional interpretation and original intent.
I will suggest that we are truest to the Founders’ purposes when we understand original intent by reference to the values that they were trying to protect. Those values, drawn from the Enlightenment philosophers with whom they were all familiar, began with individual liberty—understood as freedom from government interference—and included respect for personal autonomy, the integrity of the individual conscience, and property rights. And an independent judiciary wasn’t the only mechanism they fashioned in order to keep government in check—others included federalism, a bicameral legislature, and separation of powers.
The issue today is: what kind of judge can we say is being faithful to those values, and respectful of the structures meant to protect them? In many areas, it’s hard to be definitive, to draw bright lines; there are genuine tensions between property rights and environmental concerns, for example. In other areas, we can see rampant hypocrisy: we have self-proclaimed defenders of federalism who insist that the federal government must step in when a state legalizes medical marijuana, or same-sex marriage. Our current Supreme Court has been considered almost too protective of federalism—too deferential to state courts—and yet it took Bush v. Gore.
Those judges who insist upon a very literal definition of original intent, who issue ringing defenses of “tradition,” usually fail to note that slavery, segregation, and anti-miscegenation laws were all “traditions.” Not allowing women to control their own bodies, or even work outside the home—certainly not as doctors or lawyers—was “traditional.” If you look at “traditional” judges’ decisions as a whole, you usually find that they are supportive of a very selective “traditionalism.”
Each of you will need to decide which candidate is most likely to respect fundamental American values and the independence of the courts, and which candidate is most likely to appoint judges who will maintain them. But this I can tell you—the President’s appointments to the Courts will determine much more than a woman’s right to choose, important though that is.