Author: Jared Mayer, Johns Hopkins
It’s that season again. This past Monday, the Supreme Court opened its courtroom doors once again for the start of the October 2014 Term. And the season has its classics: Justice Scalia’s snarky comments from the bench, Justice Thomas fulfilling his oath of silence. But the most classic of them all is none other than the media’s endless use of the “A-word” to describe the Court.
The “A-word” is not what you think. It’s “activist”- easily the greatest insult one could hurl at a judge. There are no basic guidelines for how to label someone an activist, nor any standardization on the methods as to how to avoid being an activist. All that is known is that once that allegation is printed onto paper or uploaded onto the Internet, it doesn’t rub off well. Not even a healthy dose of, say, actual legal explanation can exonerate those accused. Once a judge is accused of being an “activist”, he or she is marked as a politician; one who couldn’t give a fig for good legal work, and who is worst of all untrustworthy.
Take, for example, the National Review Online. Not only have they called “judicial activists” out regularly, but they also have a column dedicated to marking the infractions that judicial activists have committed over the years. What is most interesting is that nearly all of the judges indicted by the columnist, Ed Whelan, have the following last names: Warren, Brennan, and Goldberg, to name a few. These judges had judicial careers that were marked by broad, novel interpretations of the Bill of Rights – something repugnant to conservatives. By contrast, there is not a single mention of Justice Field, a Justice of the Supreme Court who essentially argued that a graduated tax rate violated the Equal Protection Clause – a constitutional position that conservative ideologies would tend to embrace. Funny how that works out.
The National Review Online isn’t the only outlet to use the label of “activist.” The New York Times has published an article that claimed the Roberts Court to be parlay to activism. The evidence? McCutcheon v. FEC, Citizens United v. FEC, and Shelby County v. Holder. Sure, these opinions have arguably upsetting outcomes. But doesn’t it seem odd that these opinions – ones that have outcomes that don’t sit well with progressives – are the ones chosen by Thomas Edsall in the New York Times? Isn’t it odd that Roe v. Wade isn’t on the hit list? It shouldn’t be.
It shouldn’t be, because that’s what the A-word is all about. It’s not about principled criticism of the court. It never has been. The A-word allows commentators to escape the duty of looking at legal arguments on their merits, instead granting them the license to attempt to condense legal opinions into catchy, digestible sound bytes. And these sound bytes always substitute the legal and constitutional analysis with a more riveting, political one.
Both sides of the aisle can, and do, accomplish this. Let’s go back to the example of Roe v. Wade. Those on the left, who typically support abortion rights, will argue that the court’s decision expanded the people’s liberty and allowed women to control their own reproductive systems and therefore their lives in many senses, be it economically or socially. Those on the right will retort that this was an – you guessed it – activist decision made by the court that undermined the democratic choices of the people, leaving them less self-ruled than before.
Now let’s go to a famous decision that conservatives love: Bush v. Gore. Conservatives, like their progressive brethren in the previous example, will claim that the nation needed the Supreme Court to issue decisive action to end the election. It just so happened that said action helped George Bush win the 2000 election. Progressives, on the other hand, will argue that this decision was a usurpation of state’s rights and the Supreme Court, in an activist fashion, meddled with the votes of the people in order to purposely hand the election to George Bush.
Does anyone else think a time-out is in order?
Analyses like these yield little value when it comes to understanding law, or how the courts work, or even how to improve our judicial system. They merely make loud, albeit politically scrumptious, noise about how the court didn’t rule the way they, the news outlets, wanted it to. Shouldn’t we want commentary that is more erudite than a disappointed five year old in the candy aisle?
So how do we change this? We leave politics to the side. We don’t look for the latest “Which justice wrote the opinion I don’t care for?” op-ed. We look, rather, at what they actually do. We look at the arguments, the presuppositions, and the evidence the judges bring before us. It is on that rubric, and that rubric alone, that we can properly rate our nation’s collective judiciary.
So this Supreme Court season, let’s ask the media to do us all a favor: keep the A-word to yourselves.