Acting Out

Karlan_35.6_roberts Pamela S. Karlan in Boston Review:

A stalled economic recovery. The airwaves filled with demagoguery about important constitutional issues. A president who chides the Supreme Court for striking down a major piece of federal reform legislation. And, in response to charges of a pro-corporate tilt on a Court with a narrow conservative majority, Justice Roberts defends the Court’s intervention with the bland claim that judges do nothing more than “lay the article of the Constitution which is invoked beside the statute which is challenged” in order “to decide whether the latter squares with the former.”

2010? 1936. That mechanistic image of the judicial process was the handiwork of Justice Owen Roberts, responding to critics who complained that the Court was overriding New Deal economic legislation on the basis of its own political preferences. Current Chief Justice John Roberts would deflect such charges of “judicial activism” —the idea that judges improperly strike down democratically enacted laws according to their own moral and political convictions—by appealing to the metaphor of an umpire calling balls and strikes.

Indeed, the phrase “judicial activist” (or “activist judge”) is so frequently used that it has come to exemplify what George Orwell described in the 1946 essay “Politics and the English Language” as a term with “no meaning except in so far as it signifies ‘something not desirable.’” Consider how it has been employed in recent judicial-confirmation hearings. Conservative senators who worried that nominee Sonia Sotomayor would be a judicial activist pointed to her appeals court decision in Ricci v. DeStefano, in which she had refused to override employment policies adopted by the democratically elected government of New Haven. A year later the National Rifle Association announced that it would oppose Elena Kagan’s nomination because she might not be activist enough—her record suggested to them that she would uphold laws restricting gun possession. Meanwhile, liberal senators spent the hearings excoriating the activism of the conservatives on the Court, who had voted in Citizens United v. Federal Election Commission to strike down certain federal restrictions on corporate involvement in the election process.