The Key Issue of Judicial Independence:
With Conservatives' Rhetoric Effective, and Supreme Court Justices Concerned, How Should Progressives Respond?

By EDWARD LAZARUS
Thursday, Oct. 12, 2006

In legal circles, the issue of the moment is judicial "independence."

For many years now, right-wing conservatives have been conducting an unrelenting attack on supposedly out-of-control "activist" judges, as part of their campaigns against abortion rights, affirmative action, and the judicially-imposed ban on prayer in public schools.

In the last few years, however, the assault on the judiciary has developed a new fury. In the wake of the legal maneuverings surrounding Terri Schiavo's tragic death, conservatives have not only ratcheted up their anti-judge rhetoric, they've started acting on threats to seek impeachment of federal judges they don't like, and to set up systems for monitoring judges who depart from their preferred legal views.

The legal community, including the judiciary itself, has started to circle the wagons. Most visibly, retired Justice Sandra Day O'Connor is traveling the country excoriating judicial critics while trumpeting the virtues of judicial independence. And in a sign of the times, no less than seven Supreme Court justices - normally a pretty reticent bunch -- attended a recent conference decrying the rise of judge-bashing.

In this column, I'll consider why conservative attacks on judges have been such a successful tactic, and consider, too, what response progressives ought to make to such attacks.

The Fine Line Progressives Ought To Walk on Judicial Independence Issues

As I have written in an earlier column, legal progressives have a fine line to walk in this area. On one hand, it is vitally important to protect judges from intimidation, and to celebrate the judiciary's role in preserving equality, individual rights, and the separation of powers.

On the other hand, progressives need to avoid court worship. Historically, the federal judiciary has most often not been a hospitable forum for progressive ideas. And the modern judiciary, now dominated by conservatives, has produced a host of anti-progressive and, no less important, unprincipled decisions.

In short, progressives need to balance a rigorous defense of a robust, fair, and impartial judiciary with a rigorous critique of unprincipled judging.

In striking this balance, progressives must bear in mind that today's assault on the "independence" of the judiciary is not mainly an assault on the judiciary as a whole. Rather, at its core, contemporary judge-bashing is a conservative tactic for undermining particular liberal judicial decisions and approaches to law that stand in the way of the conservative agenda.

And for this reason, it is not enough for progressives merely to defend the role of the judiciary in the structure of American governance. Progressives also need to defend their own particular vision of judicial decisionmaking.

Conservatives' Rhetoric Has Been Effective - Leaving Many Progressives Puzzled

In recent years, we progressives have done an absolutely horrible job of this. Conservatives have routed progressives in the war of words, and have thus largely succeeded in equating liberal approaches to the Constitution with unprincipled attempts to "legislate from the bench" and substitute dangerous liberal values for the values truly enshrined in the Constitution.

Effective rhetorical devices have played an enormous role in this conservative success. Conservative politicians have turned the phrase "activist judges" into a powerful epithet covering a multitude of unpardonable sins. And they have managed to convert the term "strict constructionism" - which historically describes a discredited approach to law linked to the defense of slavery and Jim Crow - into a widely-approved, supposedly "common sense" approach to Constitutional interpretation.

These developments have progressives scratching their heads in befuddlement. And this is understandable. After all, much of the conservative rhetoric about activism and strict constructionism is downright silly.

Judicial Activism: A Derogatory Term, But Key, Lauded Decisions Were Activist

Let's start with the concept of "judicial activism." What does this term really mean?

From a jurisprudential standpoint, it is a descriptive term that is neither inherently good nor inherently bad. Activism, properly understood, simply describes a situation in which a court either declares an action of one of the two elected branches of government to be unconstitutional, or overturns one of its own prior judicial decisions.

Seen this way, it is readily apparent that "activism" has gotten a very bad rap. Indeed, the two most universally-accepted decisions of the modern era are both "activist" in the extreme.

Brown v. Board of Education sweepingly declared segregated public schools to be unlawful while burying the Court's own previous decision in Plessy v. Ferguson. It forced important social change, and caused significant social disruption, some of it violent or potentially violent. Yet it is now a sacred touchstone of our constitutional order. For a Supreme Court nominee to question Brown would be suicide.

In a similar vein, the reapportionment decisions - Baker v. Carr and Reynolds v. Sims - forced widespread reapportionment of voting districts in the states, districts that had been drawn by elected legislatures. Such reapportionment predictably changed the results of elections, and literally redrew the voting map. For all these reasons, it was revolutionary from a jurisprudential standpoint.

Yet hardly anyone today questions the one-person/one-vote standard the reapportionment cases created. Like the right not to suffer segregation in education that Brown established, this key standard seems now to be simple common sense.

We Need to Look to the Quality of Justifications, Not Just Paste on the "Activist" Label

To be sure, one could just as easily come up with a list of judicial mistakes that fit the description of activist. (I would readily nominate Bush v. Gore). But the point is exactly that: Activist decisions cover the spectrum from brilliant ideas to colossal mistakes.

In the end, the test of whether a judicial decision is good or bad - principled or unprincipled - is not whether the decision is "activist" but whether, in a given case, the Court's justification for its activism is logical and compelling - or not.

This fairly obvious point notwithstanding, conservatives have managed successfully to equate the term "activism" with all controversial or unpopular judicial decisions. Indeed, they have even managed to take uncontrovertibly non-activist decisions and label them activist.

A prime example is the Court's controversial decision in Kelo v. New London, in which the Court refused to strike down New London's decision to use the power of eminent domain to take private property and give it over to a private developer. Now, many reasonable criticisms have been leveled against the Kelo decision (though it is also powerfully defended). But one thing is certain: the decision is the very opposite of activist.

Kelo is a decision refusing to impose a judicial check on the judgment of New London's elected officials. If anything, the decision is excessively passive. None of this, however, stops conservatives from tarring the decision with the activist label.

"Strict Constructionism": Powerful As Political Rhetoric, But Not In the Courts

Logic plays no greater part in the conservatives' successful invocation of "strict constructionism" as their preferred method of constitutional interpretation. As even conservative Justice Antonin Scalia has pointed out, there is no reason the Constitution or any other federal law should be given a "strict" construction, any more than such texts should be given a loosey-goosey construction. Our Constitution and laws deserve a fair construction - neither willfully strict nor willfully loose.

Nevertheless, strict constructionism has proven a powerful rhetorical tool. The term effectively reinforces the conservative critique of liberal jurisprudence and its allegiance to a "living Constitution" as nothing more than an anything-goes interpretive method for writing liberal values into the Constitution.

It does not help the progressive cause, of course, that liberal judges are sometimes guilty as charged.

The Need for Progressive Rhetoric As Effective as Conservatives'

Setting this important point aside, though, progressives have also been severely handicapped by the lack of an effective rhetorical rejoinder to the conservative mantra of "strict constructionism." For better or worse, progressive approaches to interpretation tend to be more multi-faceted and nuanced than conservative approaches. We do not, for example, simply locate the meaning of the Constitution by channeling the purported intent of the Framers.

But nuance be damned, we need a slogan. And I hereby propose one: "faithful constructionism."

It is a little clunky, I admit. ("Strict constructionism" isn't exactly poetry either). Still, I think "faithful constructionism" captures what principled progressives really do when they interpret the Constitution. They try to be faithful to the Constitution's text, faithful to the animating principles that the Framers embedded in the document, and faithful to the Constitution's history. The fidelity to text, principle, and history is the liberal claim to legitimacy - and "faithful constructionism" sums this up as well as any phrase I can devise.

I also think "faithful constructionism" draws power from its invocation of a religious idea. In a very real sense, the Constitution is our secular Bible. And the progressive methodology for interpreting the Constitution has a fair similarity to how most people read the Bible. We are not literalists, and neither are the majority of the religiously faithful. We look for the underlying teachings, and to commentary through the ages. In short, we engage in interpretation, as most people do with scripture.

I also like the implicit message that "faithful" constructionism conveys about those who would oppose it. The very term suggests opponents are "unfaithful" - just as "strict constructionism" paints its opponents as "loose."

In any event, as conservatives wisely recognized long ago, when it comes to battles for the rhetorical high ground, repetition and consistency of use are essential. Whether progressives ultimately choose "faithful constitutionalism" or some other term to capture the same idea, we need to stick to it - over and over again.

I'm starting here.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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