The Centrality of Judicial Review: Pierce the Spin on Sotomayor’s Confirmation

Judicial activism isn't all bad. Just ask any minority public school student.

On Wednesday, Newt Gingrich published in “Human Events” what for all the world looks like a talking points memo on everything presumptively wrong with Supreme Court nominee Sonia Sotomayor. Amidst spouting the usual outrage about the evils of “empathy” and “diversity” – qualities the right actually values in other judges – Newt asks the following question:

How does Judge Sotomayor come down on the issue of a judge’s fidelity to the law?

Gee, Newt, I dunno: how does ex-Congressman Gingrich come down on the issue of push polling? The American people deserve to know.

In any event, in previous articles, we’ve explained the centrality of judicial review to the American system of government, analyzed the historical value of “judicial activism,” and explained how conservatives and liberals alike can responsibly make their cases about the meaning judicial review.

However, we’re not so naive as to believe that responsible debate has any place in most battles of the culture war. Go over 140 characters, and you’ve probably lost the attention of most of the media. Here, then, is our attempt to break down the debate on “judicial activism,” talking point by talking point.

1. “Activist Judges are subverting the Constitution!” People like Newt Gingrich and Karl Rove have equipped an entire generation with a legal education only two catchphrases deep. Get beyond the phrases “activist judge,” and “legislating from the bench,” and most people who think they’re angry about these issues won’t know what to do. Ask for an example of “judicial activism” aside from Roe v. Wade, and you’ll probably get the Palin reply – I don’t know.
2. “Judges don’t get to make law!” This is accurate, but a straw man. No judge “makes law” at the level that conservatives fear – that is, wholesale invention of legal rights. An ordinary part of judging, though, is “filling the gaps” in congressional statutes or constitutional rules. Words like “discrimination” admit of no easy definition – “I know it when I see it” is not a modality of interpretation – and when judges give these words meaning, they do “make law” as an incident to interpreting it. That’s not scary, that’s how judging works.
3. “Judges shouldn’t invalidate statutes!” This, of course, is done by judges of all stripes. If you have a problem with judges striking down unconstitutional statutes, your problem is with the Court, not any single judge.
4. “Judges shouldn’t push social agendas!” Not generally, no. In fact, Roe may have been a bit of an overreach, the right decision at the wrong time. But any serious critic of “judicial social engineering” must grapple with and explain Brown v. Board of Education, the unimpeachable and epoch-making case of “social engineering” that first brought true legal equality to African Americans. If  “judicial activism” is wrong, and the Court should steer clear of social policy, why was Brown right? The easiest answer – that Brown was sui generis, special, never to be repeated – is also a misleader. The controversy ignited by Roe, the conservative’s poster for the evils of judicial activism, was unforseeable by the Justices, and equally unrepeated.

These are not easy questions, and they don’t have easy answers. The best thing that we as progressives can do is shatter the idea that constitutional decisionmaking can, or should be reduced to a buzzword.