OPINION:
The myth of judicial activism
BY SOL WACHTLER AND DAVID GOULD, Newsday, July 11, 2009
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Sol Wachtler is former chief judge of New York State. David Gould is a practicing attorney and former federal prosecutor. Both are Republicans.

The nomination of Judge Sonia Sotomayor to the U.S. Supreme Court has reinvigorated the canard that the country is split between so-called "liberal" judges who are agenda-driven and activist judges, and "conservative" judges who abide by the law and the strict wording of the Constitution. This national myth of dueling judicial philosophies - which is the source of the Republican charge that Judge Sotomayor "is an activist judge who legislates from the bench" - will be a focal point of her confirmation hearings.

We would like to unmask the myth by measuring the record of conservative Supreme Court justices against each element of the conservative judicial philosophy of judicial restraint. The conservative tenets may be sound but they have not always been practiced by conservative judges.

Elected legislators, not unelected judges, should determine policy and law.

The conservative majorities under Chief Justices William Rehnquist and John Roberts have overturned or gutted more legislation than any Supreme Court in more than 70 years, including the bugbear of the right, the uber-liberal Warren Court.

The Constitution should be strictly construed, without straying beyond its original intent and explicit wording.

The 11th Amendment is simple: It prohibits a citizen of one state from suing another state in the federal courts. It neither prohibits nor was intended to prohibit a citizen of a state from suing his own state.

The conservative majority in the Rehnquist and Roberts courts have read the amendment as prohibiting a citizen of a state to sue his own state. This rewriting of the Constitution allowed the justices to gut major legislation passed by Congress, such as the Americans With Disabilities Act.

The 10th Amendment, which reserves for the states and the people those rights not explicitly granted the federal government, should be the cynosure of Supreme Court jurisprudence. Power is best exercised at the state and local level, rather than being dictated from Washington.

The greatest damage in the past generation to the concept of returning power to the states has been the reinvigorated doctrine of federal pre-emption, whose champion is conservative icon Roberts. Under this doctrine, even long-standing state control has been subordinated to the dictates of the federal government.

Another conservative icon, Justice Antonin Scalia, voted that federal power invalidated the California medical marijuana law and the Oregon assisted-suicide law, even though both represented the direct expression of the will of the people by initiative and referendum.

Judges make decisions by following the law, not their personal agenda or views shaped by their life experience.

Judge Sotomayor has been pilloried for saying that a Latina judge might have reached better conclusions in some decisions than white males, implying it is often the judge, not the law, that determines the outcome of a case.

Most judges, conservative or liberal, try to be impartial, but legal issues are complex, and judges are human. The default position in a close case is invariably influenced by one's life history and present beliefs.

It is not believable, for example, that consciously or unconsciously, Justice Scalia's strong conservative and religious beliefs played no role in his violating his federalism principles to vote to invalidate state medical marijuana and assisted-suicide laws.

Or consider the 1872 case of Bradwell v. Illinois, which found it constitutional for Illinois to bar women from becoming lawyers. Justice Joseph P. Bradley wrote that women's destiny was to serve as "wife and mother" and that they were not "cut out for the rigors of legal practice."

Could even the most hard-line conservative deny that had that decision been rendered by nine women, instead of nine men, it would have made no difference? Had only one justice been female, the mere infusion of her life history into the discussion - including her ability to withstand the "rigors" of law - would have had an effect on the wording, if not the outcome.

Probably two of the most activist decisions in our judicial history were the Brown v. Board of Education and Loving decisions of the Supreme Court. Brown prohibited government-enforced segregation in our schools, and Loving invalidated statutes in 16 states that prohibited consenting black and white adults from marrying each other.

At the time, both decisions were attacked as activist encroachments by the judiciary with the same vigor that Roe v. Wade and court decisions allowing gays to marry are assaulted today. Yet not even hard-line conservatives argue today that the courts should have sacrificed a few more generations of young black students and loving couples, waiting until public opinion influenced legislators to give citizens those basic rights.

On the other hand, the 1857 Dred Scott case by the Supreme Court was the quintessential strict constructionist decision, both by its method and its explicit wording. Justice Roger Taney wrote that his generation might not approve of slavery, but the people who wrote the Constitution did, and therefore, absent a constitutional amendment, slavery would be forever enshrined in our laws. Even Justice Scalia has admitted that the Dred Scott decision was an utter disaster for the judiciary and the country. Yet it was, by every definition, a strict conservative decision.

Conservative pundits say they want judges who follow conservative judicial principles. But what they really want are judges who follow the conservative political agenda. They have criticized Sotomayor for not voting to override New Haven's decision to invalidate its firefighter exam, the subject of a recent Supreme Court decision, for example, even though she took a "conservative" position of not meddling with local legislation. It was the Supreme Court, in overruling the firefighter case, that "legislated from the bench."

Where were the conservative pundits when the conservative majority of the Supreme Court ended the 2000 presidential election with a decision that trampled on so many basic conservative constitutional principles that they took the virtually unprecedented step of saying the case should not be used as precedent, coupled with the warning "Do not try this at home."

The conservative pundit Laura Ingraham attacked the Sotomayor nomination and President Barack Obama's emphasis of her Hispanic background, stating that we don't need black, white or Latina judges, but judges who follow the Constitution. Virtually every day Rush Limbaugh rails that only the conservatives want judges who follow the Constitution rather than their personal beliefs.

But the idea that "all we need is the Constitution" does not explain why in 1896 the Constitution was held to allow segregation and 50 years later a unanimous Supreme Court said the document did not countenance separate schools for the races.

The Constitution did not change. The people pronouncing upon it changed, and their life experiences and the zeitgeist they lived in were as central to their decisions as the political beliefs of the conservative justices were to their decision in Bush v. Gore.

There is an activist judge inside everyone in the legal profession. Judge Sotomayor is no more activist than Justice Scalia, and probably far less so on many of the issues we have discussed in this article.

And as Scalia's jurisprudence is clearly informed by his very conservative and rigorous religious beliefs, so will Sotomayor's jurisprudence be informed by her life history which, though unique to the court, is shared by countless people affected by the court's decisions.

It is precisely because it is inevitable that a judge's life experience will influence his or her decisions that it is essential our judiciary be as diverse as possible . . . and that includes the Supreme Court.

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