Submitted to a Candid World

Our Gal Yesterday, Alaska’s very own Sarah Palin (long may she remain there) continued her culture war parade of hits, breaking out an eminetly predictable rant against “activist judges.” Palin’s invocation of this tried-and-true far-right talking point – that the Supreme Court is in fact the most dangerous branch – comes against a backdrop of renewed conservative and media focus on the federal judiciary. It’s good that Sarah Palin is finally giving the judiciary the attention it deserves.  Word is, she can even name a Supreme Court decision other than Roe now (Kelo: yawn, what a shocker). But Sarah Palin’s rant against “activist judges,” like so many conservative talking points, understates the depth of the issue and betrays a not-so-shocking lack of insight into the functioning of the separation of powers in American democracy.

For one thing, the federal judiciary is, at least to some extent, meant to be an activist branch. If the Supremacy Clause is to have any meaning, at least since Marbury v. Madison the constitutional structure of the United States explicitly contemplates counter-majoritarian limits on the political branches. Namely, neither Congress nor the President can act in contravention of the Constitution. No matter how many votes they muster to do it, the President can’t establish Scientology as the official state religion, nor can the Congress outlaw handguns, nor can a state prevent women from holding jobs. Arguably, these are the easy cases: where a political branch clearly oversteps its constitutional powers, few would contest the Supreme Court’s right to slap it back into line. The hard question, of course, is where rational minds can disagree about the constitutional validity of executive or legislative action. Accusations of an “activist judiciary” are most salient when the Supreme Court acts based on a tenuous, new, or debatable reading of the Constitution.

There can be no doub that an “activist” ruling, compelling extreme social consequences based on a loose interpretation of the Constitution, can bring chaos and threaten the constitutional order. When the Court stakes its legitimacy on a tenuous constitutional claim, it risks a constitutional crisis and creates political baggage, as elections are made and lost on the political outcome of its decision. While there are good reasons for the Court to strike an activist tone, they are few and vastly outnumbered by the bad reasons. To the extent that Sarah Palin ignores the potential for a positive “activist” ruling, though, Palin misunderstands our constitutional history.

When the Court handed down its unanimous decision in Brown v. Board of Education, 347 U.S. 483 (1954), and ended the practice of racially segregated schooling, it reversed a series of decisions that had strayed from the intention of the Framers of the Fourteenth Amendment, who had clearly considered segregation to be forbidden by the Fourteenth Amendment. The historical pedigree and legitimacy of its opinion, though, was lost on a generation that had largely grown up viewing blacks as inferior, and had understood the law to not affirmatively oppose this categorization. Brown provoked, in Southerns’ words, “massive resistance”: the National Guard was deployed to ensure peaceable integration, billboards and hastily written hate letters called for the Justices’ assassination, and the Court’s docket for twenty years would be filled with cases of school boards actively opposing the mandate of the highest court in the land. If there was ever an “activist” decision, it was Brown v. Board – and yet, today, not one of us could say that it wasn’t worth it. Brown redeemed the nation, at least partially, from the sin of slavery, and signalled the beginning of the end of institutionalized racism. And it accomplished all this at least a decade before the political branches would have undertook the same goal. There is such a thing as a positive and morally right activist judiciary.

Of course there is such a thing as a negatively activist judiciary. But Sarah Palin isn’t willing to think hard enough, or credit the intelligence of her audience enough, to attempt to draw a principled distinction between positive and negative judicial leadership. In her mind, the “activist judiciary” is a more respectable way of saying three simple words: “down with Roe.” It’s time for Palin, and the religious right, to say what they mean, and stop miseducating our citizens about the role of the Supreme Court. Either Palin doesn’t understand the Constitution, doesn’t respect it, or she just doesn’t care. Whichever it is, it doesn’t reflect well on her or her ideological peers.

UPDATE: Bush is lost too. In a recent speech, he begged judges to “apply the law as written,” citing that as the only difference between activist and non-activist judges. No; constitutionalism fail. Appellate courts sit in judgment of the law and the facts, as required by our constitutional system. Judges are duty-bound to ignore the law “as written,” when what’s written is unconstitutional.