Judicial Activism and the Lost Art of Persuasion

Back during the John Roberts confirmation hearings, one of the Democratic Senators, I believe it was Joe Biden, asked if Roberts would be on the side of "the little guy." The now-Chief Justice answered that if the constitution favored "the little guy" then he would vote in favor. If it favored the large businesses he would vote in that favor.

This brief exchange is proof-positive of how liberals have seen the courts as a way to make law. However, this isn't just the province of liberals. Conservatives are starting to see the courts as a way to prevent changes they don't like and even make law themselves.

This rush to the Courts to me is a tell-tale sign of the lack of civility in society. Rather than trying to perusade each other, we see the other as evil, and use the Courts to stop "them."

William Galston wrote an informative piece in Blueprint, the magazine of the centrist Democratic Leadership Council. While his article is more geared to liberals, it could be a cautionary tale to those conservatives who want to use the courts to shape their agenda as well. He notes that Democrats have forgotten what the courts are for:

The judiciary is supposed to be a check on the legislature, not an alternative source of legislation. In recent decades, however, Democrats have failed to preserve this distinction carefully enough, and they've paid for their carelessness. We should not assume that because the people reject Republican attacks on an independent judiciary, they support Democrats' understanding of the judiciary's role in our republic. The politically resonant attack on Democrats as elitists reflects, in part, an unwise reliance on the courts to do what Democrats could not accomplish -- not readily, perhaps not at all -- through the legislative branch.

He then adds that Brown v. Board, the landmark case that struck down segregation, was an exception to the rule, not a template for liberal social policy:

Brown v. Board of Education was a wager on history. It rested on the hope that the executive branch would enforce school desegregation against local resistance, that the U.S. Congress would accept at long last its responsibility to enforce the 14th Amendment, and that when faced with a stark choice, the American people would endorse the moral imperative of equal citizenship for all. Liberals won that bet, but they misunderstood their victory. They concluded that Brown represented, not an exceptional moment in the history of the republic, but rather a template for rapid social progress in the face of opposition that could thwart majoritarian processes.

During the ensuing decades, liberals increasingly resorted to the courts to achieve results they could not obtain through legislatures, on issues such as school prayer (Abington v. Schempp, 1963), criminal procedure (Miranda v. Arizona, 1966), and abortion (Roe v. Wade, 1973). But these legal victories came at a price that mounted over time. Many citizens who had been part of the New Deal coalition came to believe that the courts were cramming decisions down their throats without even consulting them, let alone gaining their assent. And they came to believe that the courts were doing this at the behest of political and academic elites whose sensibilities were at variance with those of the American people. As a result, opposition to a court-centered politics became a staple of the conservative populism (pioneered by George Wallace and skillfully appropriated by Richard Nixon) that has done so much to turn Republicans into a national majority.

The result was that the people were left out of the process. And in many ways, they are still being left out today. Issues such as gay marriage and abortion are trying to be settled not by legislatures, but by courts. I would agree with the writer that people should be wary of using the courts to achieve social progress. Take gay marriage. The far right has an issue when they talk about judges granting gay marriage through rulings and bypassing the legislature. Some on the left have only poured gas on the fire by trying to use the courts to get gay marriage on the books. As Galston notes, doing something like this is basically shoving an issue down the people's throats whether they like it or not. It will make people resentful and will ultimately backfire.

The judiciary should not be a backdoor legislature. We vote for representatives to do to one thing: legislate. The court is there to make sure that legislatures and executives are playing by the rules. They can't be concerned with being for or against "the little guy." I do however, expect my representatives to do that, not my judges.

I believe that Centrists must be the ones who lead the charge to get back to having the legislature legislate ( what a radical idea!). Centrists tend to be more willing to persuade than partisans on the left and right who can't trust each other. Centrist politicians must be willing to speak out on the danger of using the courts for what they were't intended for. Centrist rank and file must hold all representative's feet to the fire to actually do their job and not expect a bunch of people in black robes to make law.

It's time let the courts be the courts.