According to blogsforterri.com, Judge Greer has granted an additional three weeks To Terri Schiavo; this stay will allow Terri Schiavo's parents to further present their case that Terri's husband Michael is no longer fit to act as her legal guardian and health care advocate. Expect to hear more about this case as the three week stay draws to a close. As I wrote in my previous Schiavo post, it is disheartening to see this tragic story culminate in an endless series of legal maneuvers and court battles.
I finally found mention of Terri's case on a left-wing blog - Oliver Willis wrote a one-sentence remark jabbing Republicans for supporting "judicial activism" when it suits their beliefs.
Of course Terri's case is not one of "judicial activism." The most common colloquial meaning of this term involves the use of a court ruling to overturn an existing law, or to a lesser extent to rescind a previous ruling that was considered to be a significant legal precedent. Terri's parents aren't trying to change Florida law via judicial fiat. They are simply trying to keep their daughter alive. (Admittedly, though, several activist groups are simultaneously trying to introduce legislation that would prevent courts in the future from issuing orders to terminate chronic invalids.)
Though he is off-base regarding Schiavo, Willis' remark does raise a couple of interesting questions, though: is judicial activism universally "bad," and do Republicans view judicial activism in the same way that the left views it; that is, will Republicans actively seek judicial activism as a means to advance the conservative agenda without public debate?
I believe that the answer to both questions is "no." Judicial activism has been an important tool in the advancement of positive societal change, particularly in the area of civil rights. Judicial activism becomes counterproductive only when it is used to supercede the legislative process and invoke policies that are clearly supported only by a minority of citizens.
The rulings made by the Supreme Court on civil rights issues accurately reflected the changes in the opinions held by the general population of the United States, which were the result of a century of civil rights struggles within our nation.
In 1857, the United States Supreme Court infamously ruled in Dred Scott v. Sanford that the equality of men established in the Declaration of Independence was never meant to apply to Negroes, and that Negroes, free or slave, were not legal citizens of the United States; as such, they did not have the right to declare their own freedom. In its contemporary context, this ruling was neither uniquely unusual or harsh. From the dawn of human civilization until the mid nineteenth century, chattel slavery had been an established practice of humanity, permeating every ethnic, cultural and religious group throughout history. It was simply understood that a slave who had been purchased and cared for was the property of his owner, and autonomy for slaves was a moot issue.
The Civil War changed that view. America saw the blood of 600,000 young men stain its battlefields and had come to accept the fact that the preservation of the United States had taken precedence over the preservation of the institution of slavery. Americans were willing to put the past behind them, and to end an odious practice that had been the source of such misery and death. The nation responded by ratifying (though in a somewhat underhanded manner) the Fourteenth Amendment to the U. S. Constitution, which guaranteed all citizens equal protection under the law.
What to do about free blacks, though, was a different story. Extremists (including Abraham Lincoln) felt that blacks and whites were so fundamentally different that an integrated society was impossible. Their solution was the deportation of free blacks to South America or continental Africa. But the general consensus was that the segregation of blacks into a separate but equal sub-society was an adequate means of dealing with the racial and cultural differences between blacks and whites. This idea was also equally applied to other religious and ethnic minorities (Jews, Greeks, Irish, Poles, Chinese, etc.) who migrated to America during the great post Civil War immigration surge.
It took 80 years, from the end of the Civil War to the end of World War II, for the country to move toward the integration all Americans as wholly equal citizens. After witnessing the cruelty of lynchings in the South and the ugly racism perpetuated by the Ku Klux Klan in the 1920's and 1930's, and shuddering at the horror of mass exterminations and genocide at the hands of the Nazis at the close of World War II, Americans had, by and large, begun to give up the idea that one group of people was inherently inferior to another.
The landmark 1954 Brown v. Board of Education decision by the Supreme Court overturned another decision made 60 years earlier. In 1896, the Court ruled in Plessy v. Ferguson that "separate but equal" accomidations for minorities did not violate their Constitutional rights. But by the 1950's, a majority of Americans had become more and more dissatisfied with the complications and indignity associated with racial segregation. With the exception of the Deep South, America was ready to move on. And so Brown v. Board of Education, which declared that separate, segregated systems for education were by definition unequal, was less an act of defiance by a rogue court and more a reflection of the attitude of society at large.
In stark contrast, Roe v. Wade was judicial activism at its worst. Roe v. Wade was a hypothetical case cooked up by abortion activists specifically to legalize abortion on demand. The case served only one purpose, which was to eliminate the legislative process by forcing the Supreme Court to issue a legal mandate on a subject that did not have the popular support of a majority of Americans.
Roe was the culmination of a series of groundbreaking decisions made by the Supreme Court under the leadership of Chief Justice Earl Warren. These rulings included Murray v. Curlett, which disallowed Christian prayer as an element of public school policy (and paved the way for the continual series of lower court rulings designed to purge all aspects of Christianity from the public arena), Miranda v. Arizona, which ended the practice of police interrogation of suspects without an attorney being present, and most notably Griswold v. Connecticut, which established the highly extrapolated Constitutional "right to privacy."
These decisions are still somewhat controversial (though they are accepted today as established judicial precedent) because they were based on interpretations of law and the Constitution that were taken with great liberty. A lot of creative thought went into the opinions of concurring justices, and the opinions of the dissenters passionately questioned the validity of rulings based on progressive opinion rather than traditional values, established legal precedents, or established trends in public referendums or legislation.
This is the heart of the conservative argument against judicial activism. Conservatives believe that court rulings based solely on progressive opinion, particularly opinions trumpeted by social radicals who are not in step with the majority of citizens, are ultimately harmful and serve to undo the societal fabric that binds the nation together. Thirty years after Roe, Americans are still polarized over the issue of abortion. The reason for this is simple. As citizens of a democratic republic, Americans expect that major shifts in American governmental policy will be vigorously debated in public forums. They also expect that lawmakers will respect the opinions of their constituents when formulating legislation. This is the "due process" of the American political system. Roe v. Wade eliminated that process, and the majority of Americans who had (and still have) strong views on the practice of abortion were completely shut out. And they have been bitter ever since.
Judicial activism is also dangerous when it gives one group of people the means to exert power over other groups of people, but denies those other groups a means of balancing that power. It should go without saying that the Left would immediately become a staunch opponent of judicial activism the minute a packed Conservative court began overturning liberal judicial decisions and legislation. The reactionary nature of politics should provide ample warning to anyone who believes in tampering with legislation through use of the courts. Paybacks are a bitch.
A reasonable candidate for the position of Supreme Court justice is one who has respect for legal precedent and the rule of law, and who understands the function of the court as a mechanism for the resolution of legal disputes, and not for the creation of laws that should by all rights be handled either by Congress or state legislatures. But a good Supreme Court justice should also be aware of the shifts in public opinion, often subtle, that have traditionally preceded historic legislation and judicial rulings that reflect true cultural progress.
A court that is ruled by both common sense and a sensitivity toward the will of the people can be a great instrument of common good. This seems to be the ideal articulated by President Bush. As he begins to consider replacements for one or perhaps two Supreme Court justices during the next four years, I can only hope that he finds candidates who share this philosophy.
UPDATE: updated at noon on 2-28-05 to add some links and clarify some things that didn't quite sound right at 1:30 am.
If this had involved a animal all those hollywood suck faced liberals would be on it donating big sums of money but since it involved a human being they dont care ecept if the person was a illegal alien threatened with deportation
Posted by: Flu-Bird | May 09, 2009 at 11:24 AM