Roberts Court not as Activist as They Think They Are

supreme-court-gay-marriage-for-favorible-rulingI had to chuckle when I read the varying dissents in the Gay Marriage case since the authors, sounding like sore losers, accused their brethren of being “activist” judges. As a liberal, I felt much the same way when those same judges came up with a ridiculous decision in the Citizens United case.

Also, Ruth Bader Ginsburg has proclaimed she can’t retire because she needs to act as a check against the activist court. But as has been noted elsewhere, Supreme Court vacancies are likely to arise during the next presidential term making the choice between a Democrat or Republican an even more important decision. Whoever sits in the White House come January 2017 will likely help reshape the court for the next generation.

Reading Justice Scalia’s bludgeoning of the 14th Amendment, I saw how twisted his anger has made his eyesight. And Samuel Alito wrote, “Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims. Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”

But, has the Court abused its authority. Ask me, they did with Citizens United. Ask this week’s losing side, the Court did it twice.

Having recently reviewed the 14th Amendment with my 11th graders, I understood how the Equal Protection provisions have come into play time and again, including this week’s landmark case. After all, the amendment tries to clarify the meaning of Jefferson’s words that “all men are created equal”, making certain all men was expanded to include those of color and those of the other gender. It paved the way for different colors to marry and now allows the same gender to do the same. It was also the main argument used by many in the 1970s which is why the Equal Rights Amendment failed to be ratified.

I’m not a lawyer but I got curious enough about the “activist” charges, bandied about by the losing side whenever they dislike a decision, to do a little research. On the one hand, Ryan Anderson wrote on the SCOTUS blog, “As the four dissenting opinions make abundantly clear, today’s ruling in Obergefell v. Hodges had nothing to do with the Constitution. This ruling is perhaps as clear of an example of judicial activism as any we have seen in recent years – or are likely (hopefully) to see in the future. The majority of the Court simply replaced the people’s opinion about what marriage is with its own. Nothing in the Constitution supplies an answer to the question What Is Marriage? And none of the purported rationales can justify the Court redefining marriage everywhere.”

But, as The New York Times wrote back in 2013,  “If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.” Going back to my personal feelings, they noted, “Nonetheless, Justice Ginsburg’s impression fits with a popular perception of the court. In 2010 in Citizens United, it struck down part of a federal law regulating campaign spending by corporations and unions, overruling two precedents in the bargain. In June, it struck down parts of the Voting Rights Act and the Defense of Marriage Act.

“The court will no doubt be accused of yet more activism if it continues to dismantle campaign finance restrictions, as it seemed ready to do Tuesday at arguments in a case about limits on campaign contributions from individuals.”

SCOTUSIn fact, a variety of sources all confirm that the Roberts court actually has been less radical than others, with most citing the Earl Warren court from 1953 to 1969 as being the more active court. They ”invalidated federal, state and local laws at almost twice the rate of the Roberts court.” Of course, they were tackling the remnants of bad decisions from the previous century, restoring dignity and equality to the former slaves. There was a lot to be done right after World War II, decisions that helped steer the country onto the path it current travels. It could be that the current court just has to course correct here and there, rather than remake national police and practice.

To define terms, Suzanna Sherry wrote at Vanderbilt University, “Judicial activism occurs any time the judiciary strikes down an action of the popular branches, whether state or federal, legislative or executive. Judicial review, in other words, produces one of two possible results: If the court invalidates the government action it is reviewing, then it is being activist; if it upholds the action, it is not. This definition also has the advantage of recognizing the counter-majoritarian aspect of judicial invalidations as the core distinguishing feature of activism.”

Writing in the Notre Dame Law Review, Keith E. Washington carefully traced the changing nature of the court to examine just how activist it has been since the Warren days.  (His piece is worth a read, complete with charts and graphs to help explain his reasoning.) The Berger Court that followed began the gradual slide towards conservatism as Republican presidents made lasting appointments. By the time Berger gave way to Rehnquist, “the Court now had a sizable conservative bloc consisting of Rehnquist, O’Connor, Kennedy, and Scalia, which could look to the often sympathetic Byron White to form a narrow majority against an increasingly solid liberal bloc consisting of Brennan, Marshall, Stevens, and Blackmun.” Still, the number of flaws struck down during this period decreased from the mid-century scorecard.

When John Roberts replaced Rehnquist and Samuel Alito filled in for O’Connor, the current composition took shape, veering even further towards the conservative side but still not acting in an activist manner. “The Court’s relative passivity may in fact be a function of Kennedy’s remarkable reign as the decider-in-chief of the nation’s constitutional law. For nearly three decades, O’Connor and Kennedy have held the key votes on the Court and shaped the content and direction of constitutional law,” Washington wrote.

With the current term drawing to a close, legal experts can sift through the decisions and place them in an historic context while handicapping the next term’s caseload. While that is happening, the rest of the country is adjusting to the changes in attitude. While the rapid switch from disapproval to approval of gay marriage seems unprecedented, other social causes seem to be gaining momentum, starting with the legalization of marijuana. Right behind it may well be the last great cause of the Baby Boomer generation, the right to die. And as our country grows more ethnically diverse, so will the issues we prioritize, many of which may fly in the face of the decreasing conservative base.

There will remain a conservative majority on the court for the next few years and men like Scalia and Thomas will scold and claw their way towards decisions that seem to fly in the face of rational legal thought. But change will come, sooner or later following the will of the majority, who have elected representatives at the state and federal level to properly represent their interests. It won’t be overnight and may be incremental enough so as we do not notice it at first. That’s fine by me, as long as the changes keep coming, protecting our freedoms and rights.

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