In the 1930s, liberals screamed judicial activism when the U.S. Supreme Court killed off some of FDR's more imaginative "alphabet agencies." In the 1960s, conservatives got equally rowdy when the rights of the accused were vigorously protected by the Miranda ruling.
These days, it seems that nearly every high court ruling is promptly slandered as the product of someone's judicial activism. "These matters should be left to legislators," is the common refrain from one side or the other. The logical problem with that reaction is that judicial interpretation of laws - relative to the Constitution - is our nation's most essential bulwark against the tyranny of the majority.
If the state legislatures of America were free to do anything they wanted, the rights of Americans would be altered every time we crossed a state line. That's not a nation, that's a confederation. When Americans tried confederation as an alternative to federalism, the results were a disaster. The Constitution was written as an alternative to the Articles of Confederation as a specific remedy the interstate squabbling which, among other things, levied tariffs on other states.
Then, in the short-lived Confederate States of America, dustups between the several sovereign states caused them nearly as much grief as the Army of the Potomac. For instance, Georgia kept its militias home for the first critical months of the war because duly-elected legislators decided Virginia's problems with the United States Army were Virginia's, not Georgia's. They later relented, but in the early days of the Civil War it was Georgia state law that Georgia troops would be permitted to fight the Federals when and if they crossed the Georgia state line, and not a moment sooner. One shudders to think what such an arrangement would have meant for the world in 1941.
Part of the reason the hackneyed and meaningless term "judicial activism" crops up so often in American history is that people have very short memories. The fact of the matter is, there have been cases of supposed judicial activism that unquestionably turned out to be the right thing to do.
Laws forbidding interracial marriage were struck from the books only within my lifetime. There were tens of millions of people, black and white, who believed interracial marriage was wrong, so legislatures encoded that belief into state laws. But those laws violated constitutional guarantees of freedom of association, so the court struck them down. In other words, it was judicial activism that killed off racist laws allowing states to decide who could marry whom based on skin color.
Moreover, there is a built-in remedy for judicial activism. If courts do stray too far from the will of the majority, that remedy is constitutional amendment. Amendments are really hard to adopt because our founding fathers didn't want folks messing around with the country's master legal document unless there was an overwhelming majority who thought it absolutely necessary. Of the hundreds of amendments proposed over the years, fewer than one out of ten has actually gotten further than introduction on the floor of Congress or a state legislature. And that, for better or worse, validates all those court rulings characterized as judicial activism, simply because Americans have not seen fit to exercise our collective right to overturn them.
It's a bitter pill to swallow for supporters of the Equal Rights Amendment, the Balanced Budget Amendment or the Right to Life Amendment, but in the absence of action by the constitutionally mandated super-majority, the statutes and prior rulings those amendments were designed to get around must be allowed to stand. That doesn't mean the Supreme Court was right or the proposed amendments were wrong, it just means that the rule of law has prevailed. And that's far more important than any single issue or statute could ever be.
As distasteful as some U.S. Supreme Court decisions have been (and this week's majority ruling on campaign finance reform, in this writer's opinion, stinks out loud), without judicial interpretation of the Constitution, we're in danger of living in a nation run by a majority with no limits on its power. And that's an incredibly dangerous state of affairs: Remember, a lynch mob is a majority too.
So let's knock off the ceaseless, pointless diatribes against judicial activism; the sole alternative is mob rule. As society changes and grows, our courts act to moderate the capricious will of the majority. Each side is going to win a few and lose a few, and that, in turn, will continue to nurture and sustain the great American tradition of responsible government. The creators of the Constitution who carefully balanced powers between the branches of government, and between state and federal authority, were brilliant, even prescient.
Ask any happily married interracial couple.
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