For years neo-conservatives in America have warned us about “activist judges”. Judges appointed by liberals that will inject a liberal ideology into their decisions rather than base their decisions on existing law. Most recently, after President Obama injected the concept of “empathy” into the discussion of then Supreme Court nominee Sonia Sotomayor, the ranking Republican on the Senate Judiciary Committee, Sen. Jeff Sessions (R-AL) stated, “Like the American people…I fear this empathy standard is another step down the road to a liberal activist, results-oriented and relativistic world where — laws lose their fixed meaning, unelected judges set policy…”
Prior to Elena Kagan’s confirmation hearings even starting, Judiciary Committee member Sen. John Cornyn (R-Texas) wrote in a USA Today editorial, “For decades, judicial activists have often tried to change the meaning of the Constitution to impose their own personal policy preferences on the American people…” Cornyn continues, “it is reasonable to worry that Kagan is a judicial activist simply because President Obama nominated her…the president’s judicial nominees over the past 17 months show an unmistakable determination to create a more activist federal judiciary…”
Another GOP Judiciary member, Sen. Lindsey Graham (R-S.C.), said on Fox News Sunday about Ms. Kagan, ”…you should expect us to do our job, and that’s not replace our judgment for his [President Obama’s] to make sure she’s qualified and not an activist, and that’s what we’ll both do.”
This editorial is not about Ms. Kagan, her confirmation, or her suitability. I make reference to her since she is the latest example of how hypocritical many conservatives have become in their attempts to hijack America and drive it down the road to a neo-conservative “activist, results-oriented and relativistic world.”
Obviously, activism is in the eye of the beholder. Two years ago the Supreme Court ruled 5-4 in District of Columbia v. Heller that the Second Amendment protects an individual right to own a gun. Justice Scalia (a gun owner) wrote; self defense is a “central” constitutional right that requires the ownership of guns (specifically handguns) be permitted so that it can be fully exercised. What is important about Justice Scalia’s statement is there’s nothing in the Articles of Confederation, the minutes of the proceedings of the Constitutional Convention, or the United States Constitution itself that supports this position. He is as Cornyn warns, a “judicial activists,” changing the meaning of the Constitution to impose his own ideological personal policy preferences on the American people.
This past Monday, the Court ruled 5-4 that the Second Amendment’s guarantee of an individual’s right to bear arms supersedes any local or state gun control law to the contrary. The Court has now determined that there is a right to keep handguns in the home for self-defense. Again, there is nothing of a Constitutional nature to support this conclusion. In fact, these two decisions disregard the precedent established 71 years ago in a 1939 case, United States v. Miller. As the Honorable Judge Reggie B. Walton wrote in 2004, “For more than sixty years following the Supreme Court’s decision in Miller, there was little judicial debate regarding the scope of the Second Amendment, as almost every circuit court interpreted Miller as rejecting the notion that the Second Amendment provided individuals a constitutional right to possess firearms.”
How can neo-conservative jurists such as Scalia, Roberts, and Thomas rule to overturn 71 years of Supreme Court precedent based solely on ideology and not be conservative “activist” judges? Are they not showing “an unmistakable determination to create a more activist federal judiciary…”?
In his USA Today editorial Senator Cornyn went on to write, “Beginning in earnest under the Warren Court of the 1960s, many judicial activists have in effect replaced “we the people” with “we the judges.” It is interesting that for Cornyn the problem began with the Warren Court.
What’s wrong with the 1954 Brown case banning the segregation of public schools; the 1961 Mapp case preventing prosecutors from using evidence seized in illegal searches; the 1963 Gideon case requiring that all indigent criminal defendants receive publicly-funded counsel; the 1966 Miranda decision requiring that certain rights of a person interrogated while in police custody be clearly explained?
All of these historic decisions were made with “we the people” in mind. It was Chief Justice Warren’s philosophy to protect the rights of everyone. Even one accused of crimes, should enjoy constitutionally protected rights, and the police have to respect those rights and issue a specific warning when making an arrest. For neo-conservatives this is a problem? Has the ideal of protecting the rights of all Americans become something to fear?
Finally, Senator Cornyn takes issue with Ms. Kagan citing former Justice Thurgood Marshall as one of her mentors. He writes, Marshall, “who won a great victory in Brown v. Board of Education as an advocate before the Supreme Court, but became a notorious judicial activist once he joined it.”
It is because of Justice Marshall’s “notorious activism” that America moved closer to being the “land of the free and home of the brave”; closer to becoming a country that we could all become proud of. Senator Cornyn and his cronies swore an oath to uphold and defend the Constitution. Why do Cornyn, Sessions, and others take issue with jurists who work to do the same? I guess activism is in the eye of the beholder.