Wednesday, June 30, 2010

Activist Judges

This year, I have been doing my best to stay current with the work of the Supreme Court. I have read more about the individuals and the rulings of the Supreme Court in this year than in my entire lifetime. I am not proud of the fact that I have been so disinterested in this branch of the government, but I think it reflects a similar attitude among most Americans, even those more involved than myself. We focus most of our energy on the executive and legislative branches than the judicial. If anyone would like to offer an opinion of why this is, feel free.

The Supreme Court does not rule on many cases in a given year; sometimes their refusal not to hear a case is as important as actually ruling on a case. Other than the occasional ruling, most decisions are not front page news. I read the Phila Inquirer and generally have to look carefully through the first section of the paper to find information on those decisions. Most of the talk of the Supreme Court, other than during the time of a nomination for a new judge, centers around one side or the other (of the political spectrum) claiming that a recent decision demonstrates an activist judge. In most cases, this is considered a negative description of that decision.

Again, I am no expert but I have done a bit of research lately. What confuses me is that an activist judge is generally defined as someone who rejected past rulings or precedents in support of something not in current law or, in the opinion of the talking heads, against the constitution. But if they always ruled in favor of current law, how would anything change? Was it an activist court that allowed the separate but equal laws of the Jim Crow years or was it the one that struck down those laws as discriminatory?

Clearly, the laws of the land, hence the rulings of the Supreme Court, will be effected by the moral and social standards of the day. To me, this evolving set of standards should also apply to our interpretation of the constitution. Some of our founding fathers bought and sold slaves. Being wrong on that count, does not make their work on the constitution and declaration any less inspirational. But perhaps it does show that as our society changes, so might our laws.

The two recent Supreme Court rulings that disturb me the most are centered on individual rights and the right to bear arms.

My understanding of the Supreme Court's decision on donations by corporations is that corporations are allowed to donate as much money as they want to those running for office because not allowing them to do so violates their rights as individuals to spend their money without constraint from the government. The justices for the ruling were conservative and sighted first amendment rights; those against it were more liberal and expressed concern over the effect special interests are having on our elections. Regardless of where you stand on the issue, how can one defend their position as reflective of the founding fathers? I don't believe the concept of the corporation existed then. So we are left to interpret what we think they might think on the issue. But wouldn't that interpretation reflect not only all the intervening years of the buildup of big business and the changing face of how we elect our officials, but also the individual stances of the judges as well? Is it a coincidence that the judges for the ruling tend to be aligned with a political position that favors big business while those against tend to align themselves with a political position that suggests that the everyday people of this country are losing access to their government? It is one reason why, despite applauding the tea party movement for its energy, I sometimes question their true motivations. I know that the movement is against government bailouts and wall street handouts, so why wouldn't that translate into outrage at a ruling that allows even more money to flow from the recipients of those bailouts?

The most recent ruling concerning the right to bear arms was centered on the gun control laws in Chicago. The ruling, again 5 conservatives to 4 liberals, struck down the current laws by claiming that cities and states do not have the power to restrict gun ownership, only federal laws may do so. The Second Amendment is paramount. I do not own a gun and can't imagine I ever will, but I am not so arrogant to believe that my beliefs should prevent free citizens of this country from their beliefs. However, I would be more sympathetic to gun right activists if they would admit that requiring a background check and compulsory training before ownership would make sense. Also, reporting the loss or theft of your gun might be wise. And possessing semi-automatic weapons anywhere other than a war zone is probably not a good idea. But rather than working to create reasonable gun control laws we have people clinging to a belief that because our founding fathers used guns to fight for their independence and hunt for their food, we should avoid all gun controls. Perhaps it is just our way of coping with a changing world. What we don't understand or agree with, we shoot. But seriously, is that what we want. Everyone toting a gun in the neighborhood, just in case their is a crime? As it is, innocent bystanders are hit by gunfire, even when the shooter is a trained policemen. Do you think collateral injuries and deaths will go up or down if more people are firing away? Guns for self defense? I can understand it, but when faced with the data that shows that many times more people are killed with their own gun (or that of someone they know) as compared to a someone committing a crime, I wonder what it would be like if no one had a gun and I can't blame a city like Chicago who feel that they must try anything to stop the bloodshed? By the way, did the laws work? Did murders decrease? Shouldn't that have been one of the criteria for the decision?

So, in the first of the above two cases, I feel that the Supreme Court acted in an activist way, overruling precedent (and congressional laws) in the process. This activist ruling makes it harder for regular citizens of this country to express their disillusionment with the current election process that includes such huge amounts of money. In the second, they were not activist as they used a strict interpretation of the constitution to strike down the gun laws of Chicago. But to me, this required an interpretation that reflected the reality of today, not that of 250 years ago.


  1. Nice post, Joe. Solid and sensible thinking. In your research on the SCOTUS did you come across Santa Clara County v. southern Pacific Railroad in 1886? If not, please google it, One of those stories we will never be taught in school.
    It won't clear anything up for you about how corporations are treated as individuals with the same rights, but it may show how life is changed by carelessness and thoughtlessness.

  2. Linc,

    Thanks for the compliment. I did google the Santa Clara... info as you suggested. Interesting and, as you suggest, not widely known.

    Do you get HBO? Have you spent anytime following Jack Kevorkian? The HBO special brought out his basis for believing that we have the constitutional right to die at the time of our choosing; the 9th Amendment.

    Interesting stuff, if you have not already researched it.