[Mb-civic] NYTimes.com Article: Activist, Schmactivist

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Activist, Schmactivist

August 15, 2004
 By DAHLIA LITHWICK 



 

There is probably nothing I can do or say to convince you
that the words "activist judge" have no more meaning than
the words "hectic smurlbats." You've heard "activist
judges" so many times - from the president, from Congress,
from the angry guys on the radio - that you can define it
right along with me. Together then: Liberal activist judges
make law, as opposed to interpreting it. They ignore the
plain meaning of texts to invent new rights. Superimposing
their moral views onto their legal reasoning, they brazenly
advance the cause of the fringe liberal elites in the
culture wars. 

That certainly sounds right. Justice Antonin Scalia would
say it better, of course. He'd make reference to the
framers and toss in words like kulturkampf. But it hardly
matters. We all evidently believe that you're either for
the liberal activist judges or against them. Folks on the
left say they protect minorities from majority tyranny, as
the Massachusetts Supreme Judicial Court did last year in
the gay marriage decision. Folks on the right say they act
as unelected superlegislators. Folks on the left say they
are interpreting a living Constitution. Folks on the right
say they are unmoored from any fixed point, save, perhaps,
the Harvard Law School. 

We can disagree about outcomes, but we have, at least as a
matter of political language, internalized the fiction that
liberal judges "make" law, while conservative judges
"interpret" it. 

A modest proposal, then: Let's invent a new term right
here, today, for judges or judicial nominees on the right,
who claim to be merely "interpreting" the Constitution,
even when they are refusing to impose settled law; law they
deem unsettled because it was invented by "liberal activist
judges." And while I am open to better suggestions, here's
a tentative offering: "Re-activist judges." 

Re-activist judges are the ones trying to roll back time to
the 19th century. Re-activists are the judges who have
reactivated federalism by rediscovering the "dignity" of
states. Re-activists view Lawrence v. Texas - last year's
gay sodomy case - as having all the jurisprudential force
of a Post-it note. When the United States Court of Appeals
for the 11th Circuit upheld an Alabama ban on the sale of
sex toys last month, it did so by sidestepping the logic
animating Justice Anthony Kennedy's opinion in Lawrence.
Ignoring Kennedy's lofty promises of sexual privacy - his
assurance that "there is a realm of personal liberty which
the government may not enter" - the 11th Circuit framed the
case as a dust-up over the constitutional right to a
vibrator. 

Re-activists like Priscilla Owen, President Bush's nominee
to the United States Court of Appeals for the Fifth
Circuit, rewrite the Texas parental notification statute in
abortion cases, to make it vastly harder for young women to
bypass parental consent. Re-activists like another Bush
nominee, Janice Rogers Brown, have called the Supreme
Court's shift toward defending New Deal legislation in 1937
the start of "the triumph of our socialist revolution." 

Re-activist judges have increasingly adopted the view that
their personal religious convictions somehow obviate the
constitutional divide between church and state. President
Bush's recess appointment to the 11th Circuit, Bill Pryor,
expended energy as attorney general of Alabama to support
Judge Roy Moore in his quest to chisel the Ten Commandments
directly into the wall between church and state. Pryor is
entitled to be offended by case law barring government from
establishing sectarian religion. But what re-activist
judges may not do is use their government office to chip
away at that doctrine. 

Re-activist judges are able to present themselves as
"strict constructionists" or "originalists" by arguing, as
does Justice Clarence Thomas, that any case decided wrongly
(i.e., not in accordance with the framers of the
Constitution) should simply be erased, as though erasure is
somehow a passive act. And while there is an urgent
normative debate underlying this issue - over whether the
Constitution should evolve or stay static - no one ought to
be allowed to claim that the act of clubbing a live
Constitution to death isn't activism. 

So, judicial re-activism. It doesn't exactly trip off the
tongue, I know. But let's put it out there anyhow, and
attempt to level the rhetorical playing field before
November. 

Dahlia Lithwick, a senior editor at Slate, will be a guest
columnist during August. Thomas L. Friedman is on leave
until October, writing a book. Maureen Dowd is on vacation.


http://www.nytimes.com/2004/08/15/opinion/15lithwick.html?ex=1093600346&ei=1&en=6e19fa6afa0d5e66


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