Like Fixing a Fire with a Hand Grenade
In his most recent editorial atrocity, John Leo advances the argument that the current judiciary is loaded to the brim with activist liberals who are choking the democratic process with “quasi-legislation” from the bench. He supposes that the Republicans have a historic opportunity to not only prevent further damage to the judiciary, but to also reverse the damage already done. You can read the article here.
Essentially, Leo’s case comes down to two big arguments: that the judiciary is liberal, activist, and harmfully so, and that loading it with extreme conservatives will correct that problem. I’ll tackle each of these assertions at a time, showing first that the judiciary is by no means the problem. I’ll tackle each of these assertions at a time, showing first that the judiciary is by no means the problem Leo construes it as, and that Leo’s solution, far from fixing anything, would only hurt the judiciary more.
Part One: If It Ain’t Broke, Don’t Fix It
Let’s turn our attention to the first half of Leo’s syllogism – that the judiciary is indeed hopelessly liberal, ruthlessly activist, and generally out of control. His main line of attack is that the judiciary is being used to create legislation that the majority of Americans do not support, in a sense bypassing the democratic process. This allegation is flawed on a number of levels.
First, the claim is unwarranted. Leo doesn’t even feel compelled to give us a single example of when the judiciary has overstepped their limits. He simply cites like-minded experts… well, two bloggers and an expert, anyway, who seem to agree that they have. This is problematic because we are essentially supposed to concede the first half of Leo’s syllogism – that the courts are crazy liberal monsters – without a single point of reference. You can throw away Leo’s article right now, because this is a common trick of conservative pundits. They toss around catchphrases honed through TV talking points without any substantive support. And in recent years, no catchphrase has rolled off the tongue quite like “activist judiciary”. Next time you hear a conservative bemoaning the judiciary, ask them what exactly the judiciary has done to make it “activist”. If they can name a single case to support their assertion, they’re a better one than Leo. If as Leo says, the judiciary is passing “quasi-legislation” he should be able to point to several “quasi-laws” to verify that claim. So why doesn’t he?
Secondly, even if it were true that the decisions of the judiciary were unpopular, that doesn’t make the un-Constitutional. Undemocratic? Maybe. But you have to realize that the Constitution is a thoroughly undemocratic document. Like many of the institutions established in it, the judiciary is purposely insulated from majority will so as to provide for a deliberative process apart from the whims of the people. Certainly Brown vs. Board of Education was unpopular in its own time, but that doesn’t mean it was wrong. Moreover, the system of checks and balances almost seems to encourage conflict between the legislative and judiciary branches. The legislature drafts laws, and the judiciary gets to tell us whether or not they are constitutional. It’s entirely possible that a law is popular but not Constitutional. By virtue of the fact that a law got through Congress it’s at least somewhat popular. If the courts were to relinquish the power to contradict popular opinion, then they would become a useless rubber stamp on the legislature, rather than a necessary check on it. In the end, I would argue that an insulated, oppositional judiciary is a necessary check on the legislature. If this function of the judiciary-as-interpreter is unappealing to conservatives, I think they at least have the burden to provide an alternate role for the judiciary to play, and show that it still allows for a check on the legislative branch. Since Leo doesn’t meet this burden, he fails again.
Third, and finally, I would contest idea that the decisions of the court are even as radically unpopular as Leo claims. His own backwards logic even suggests as much. In explaining why Republicans have to skip over the moderate conservatives and appoint criminally insane ideologues, he offers the ridiculous excuse that centrist nominees “slide leftward”. He says that Democrats can get away with appointing moderate liberals like Ginsburg and Breyer because they are still “reliable votes on the left”. So let me get this straight: Extremist liberals vote left, moderate liberals vote left, and now even moderate conservatives vote left? Maybe its just me but if everyone except the most extremist right-wing ideologues (who, as I’ll show in part two, are completely out of touch with the American public) supports the courts in their decisions, including moderates of all varieties, than the decisions of the judiciary can’t be all that extreme or activist. So in his attempt to justify shameless court-packing, Leo has actually debunked the myth of ultra-liberal activism, undermining his own argument. Ladies and gentleman, John Leo. As an interesting side note, the only allusion Leo makes to the unpopularity of the courts aside from simply asserting it, is that “contempt for the courts is growing on the right”. Once again, the fact that
Part Two: If It Ain’t Broke, Don’t Break It
John Leo believes that packing the courts with extremist conservatives – or as he puts it, not picking “pleasant centrists” – will correct the damage done to the judiciary and stop judicial activism in its tracks. For the purpose of analyzing this argument I’ll play devil’s advocate and accept that there is something inherently wrong with an activist judiciary, as Leo’s own advocacy is that court-packing will get rid of it. Let’s see how well that actually works. Remember – even if judicial activism IS bad, Leo has to win that his solution works, or he’s still no better off.
First, note that Leo almost endorses judicial activism as a pre-requisite for conservative nominees. He wants nominees with the “mental toughness to resist the pressures to wobble”. So let me get this straight – he wants to replace the insulated judiciary that doesn’t respond to public pressure or opinion… with an insulated judiciary that doesn’t respond to public pressure or opinion? This should in itself blow the lid off of Leo’s solution. Conservatives have no interest in stopping judicial activism; they just want a judiciary that is activist in their direction.
Second, and more importantly, is just understanding that a bench full of extreme conservatives, far from repairing damage would only engage in an activism even more inappropriate and unpopular than their liberal counterparts. The extremist brand of social conservatives that are the primary force behind the attacks on the judiciary are far more out of line with the average American, and the judges that share their beliefs would be nothing short of dangerous for democracy. Mortimer Zuckerman, Editor and Chief for US News and World Reports explains that the Republican party, “now risks alienating mainstream
The problems with the conservative judiciary go beyond that. Every American should be afraid of the prospect of any more of the President’s picks getting through to the courts. Their views are diametrically opposed to the security of American civil liberties. Don’t believe me? Lets take a look at the three conservative appointees who made it through to some of the nations most powerful courts as part of the compromise on the nuclear option.
First is Ms. Janice Brown, the one pick of three that doesn’t threaten to haunt my dreams. Unfortunately she is described by The Economist magazine as a “radical libertarian” who once called the federal government a “leviathan… crushing everything in its path.” Great. A radical ideologue. Expect rational, well-defended decisions from her.
Next up is fire breathing, racist patriarch and homophobe Bill Pryor. The Economist dishes the dirt again. He believes that the Voting Rights Act is an anachronism and equates gay and lesbian relationships with bestiality, pedophilia, and incest. Not enough? He’s called Roe v. Wade “the worst abomination” in judicial and Constitutional history. Now I’m all about using education and economics to cut down on the need for abortion. Hell, I even supported limiting abortions to the first trimester. But combine his rhetoric with Leo’s rhetoric of “undoing damage” and the common conservative rallying goal of overturning Roe becomes a chilling reality. Trying to cut down on abortion is admirable but the idea that a woman should have absolutely no right to bodily autonomy or free choice, that Roe should be scrubbed from the annals of law is ridiculous.
Last, but not least, is Texan Priscilla Owen. I think The Economist puts it perfectly in her case. “Her fellow justices, also conservatives, repeatedly scolded her for letting her own views interfere with her judgments – notably over the question of parental notification for minors’ abortions. Mr. Bush’s current attorney-general Alberto Gonzales, when he sat on the