[Mb-civic] 'Judicial Activism' to Be Thankful For - Colbert I. King - Washington Post Op-Ed

[William Swiggard]

'Judicial Activism' to Be Thankful For

By Colbert I. King
Saturday, October 29, 2005; Page A23

The celebration of Rosa Parks's extraordinary contribution to America 
presents an excellent opportunity for me to summon all the strength at 
my command so that I may shout at the top of my lungs: "Thank God 
Almighty for liberal judicial activism." I suppose this makes me a 
heretic in a town where radical right dogma reigns supreme, especially 
after the trashing of White House counsel and now-withdrawn Supreme 
Court nominee Harriet Miers. But I'll still pay tribute to activist 
judges. After all, it was a default by elected leaders that led an 
"activist" Supreme Court to decide in 1956 that it was unconstitutional 
to require that Rosa Parks and other black passengers in Montgomery, 
Ala., sit at the back of buses solely because of their race.

This celebration of Parks's life is also a chance to set the record 
straight. The culprits in Parks's case weren't limited to the white bus 
driver who told her to give up her seat to a white man or the white 
police officer who arrested her. The folks who really degraded Parks and 
other black bus riders were the Alabamans who put and kept Jim Crow laws 
on the books. Had it been left up to them, the arrests of Rosa Parks and 
other African Americans would have continued. And of course we can't 
leave out Alabama's white majority, which either liked or was 
indifferent to segregation.

When the Montgomery Improvement Association, led by a 26-year-old 
preacher, Dr. Martin Luther King Jr., tried to negotiate a bus 
desegregation plan with the city commission and the bus company, all it 
got in return was resistance -- oh, yes, and a stick of dynamite thrown 
into King's home. Thus the lawsuit.

Alabama argued then, as do conservatives today, that courts have no 
business second- guessing decisions of states and cities that are acting 
within their own laws. But the Supreme Court, looking at the 
Constitution, saw something else. True, there was not one word in the 
Constitution about the operation of bus companies or the seating of 
passengers. But "activist" high court justices, bless their souls, 
examining the due process and equal protection clauses of the 14th 
Amendment, found violations of the rights of black passengers that 
Alabama was either too blind or too unrepentant to see.

It wasn't the first time.

The year before Rosa Parks took her stand by keeping her seat, the 
Supreme Court reviewed the legal precedent established decades earlier 
in Plessy v. Ferguson, which blessed the "separate but equal" doctrine. 
Settled law though Plessy may have been, the "liberal" Supreme Court 
under Chief Justice Earl Warren ruled in Brown v. Board of Education 
that school segregation "solely on the basis of race" violated the equal 
protection clause of the 14th Amendment.

Make no mistake: It was within the power of state legislatures and 
Congress to put a halt to racial discrimination in public education. Had 
they wanted to or had they been commanded by a popular majority to bring 
about equal access to educational opportunity, legislators could have 
done so. Instead they allowed that abomination called Plessy to stand, 
leaving it up to nonviolent protests and judicial tests to challenge 
racial discrimination in public education.

So on the occasion of Rosa Parks's death, I also pay tribute to 
"activist" justices such as Warren, William O. Douglas, William Brennan 
and Thurgood Marshall, NAACP lawyer and later a justice. They are and 
will always be among my heroes.

(I'll pause here to allow my conservative colleagues to get hold of 
themselves.)

To continue . Were it not for "liberal, activist" courts, who knows how 
long it would have been before:

Rosa Parks could have sat anywhere she wanted on a bus?

Miscegenation laws would have been invalidated?

...continued at:
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/28/AR2005102801812.html
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