Today in my Law and Social Change class we discussed the topic of activist judges. Although there is no concrete definition, I find confusion and uncertainty in most modern definitions. For example, the New York Times defines Judicial Activism based on vote record of Congressional law turn-downs. This places Justices Thomas, Kennedy and Scalia at the top of the list. I personally see Scalia as a textualist with a strict interpretation of the language of the law, with little room for creativity and original laws. However, this does not necessarily mean that he is an Activist Judge. The Heritage Foundation, a large Conservative think-tank defines judicial activism as being a liberal trait. It uses the Ledbetter and Citizens United cases as background for this basis. However, Citizens United turned over a campaign finance precedent that had been in place for 100+ years. How is this Judicial Activism? Certainly we have altered our views and interpretation of the Constitution, so shouldn't this decision be viewed as an update of social opinion surrounding campaign finance rather than activism?
To back up a little bit, this question would have never been raised had it not been for Marbury v. Madison in 1803. The Marshall Court sacrificed the grievance (the legitimacy of Marbury's midnight appointment by Adams) in order to use the opportunity as a platform to earn the Court's supremacy. Essentially, by pleasing Madison, he affirmed the Court's right to judicial review. To me, that was the original instance of judicial activism. The Marshall Court followed the words in the Constitution and the Laws of the time to deny Marbury his appointment. However, Marshall added meaning to the simple words of the Constitution and used the added meaning to make the Court supreme in its power. This is the basis for my argument as to what defines Judicial Activism.
Moving forward to Brown v. Board in 1954. Most argue that Brown represents and activist decision. However, I do not see it as such. In Plessy v. Ferguson, in 1896, the Court took a completely different approach than Brown and arrived at the decision that separate but equal was in-fact equal. In Brown the opposite decision was reached in saying that separate but equal is inherently unequal. I would argue that Plessy represents judicial activism more so than Brown due to the fact that the sitting judges at the time were using their interpretation of the Constitution (which would later prove to be wrong) to deny essential rights to African Americans. However in Brown, the negative sentiment that followed the Plessy decision was realized by the Court. Essentially, Brown reversed Plessy and used interpretation of Law to grant rights to African Americans and take them away. Although both cases added interpretation and language to pre-existing laws, I feel like Brown took the right path of minority protection in going against public will. With that being said, I would have to define an Activist Judge as being someone who adds personal influence and language to pre-existing instances and definitions of modern law in order to accomplish a unified goal whether or not it go against public opinion.
Rant over.
