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Judicial Activism


Judicial Activism
In his article, “The Myth of Conservative Supreme Court: the October 200 Term” Lino Graglia tries to change the image of conservatism of the Supreme Court. He is trying to say that the Rehnquist Supreme Court had not been by any mean conservative, but rather liberal. Moreover, he believes that the Supreme Court is too active in our society that it even controls the way we think. This paper will try to criticize this essay, showing what the author fells short from achieving.
The writer is not always consistent with his arguments and statements. He first says in the second page that the judicial activism is best determined by considering only its ruling denying not its ruling upholding, “For practical purposes, the extent and nature of a court's constitutional judicial activism is best determined by considering only its rulings denying, not its rulings upholding, constitutionality and comparing liberal and conservative victories.” (Graglia). Right in the following page he states that one of the liberal activism methods the Rehnquist used was accepting some prior decisions as amendments to the Constitution, “Nor has it undertaken to rescind some of the liberal victories by overruling some of its predecessors' controversial decisions; on the contrary, it has accepted those decisions as legitimate additions to the Constitution, available as springboards for further liberal advances. (Graglia)
Off course the idea that the Supreme Court can only be looked upon as active through invalidating prior laws is wrong. Validating prior statutes can also be used for liberal causes. Employment Divisions v. Smith is a very good example here. Alfred Smith and Galen Black were councilors at a drug program in Oregon. They also used Peyote in their religious ceremonies at the church, which violated the law of Oregon. Smith and Black were fired and could not get unemployment benefits. The highest state court ruled that the Free Exercise Clause of the First Amendment required exception of religious use of peyote. The Supreme Court upheld the Law of Oregon against the Free Exercise clause of the First Amendment (irons). This could be considered judicial activism as well, although it did not invalidate the Law of Oregon.
The Author fails to recognize and explain the complexity of the relation between the Supreme Court and the society. He argues that throughout the American history, the Supreme Court has been pushing the American society to the left.
“The Court overturned the policy choice made in the ordinary political process, usually at the state level, only to impose on the nation a choice farther to the left-liberal side of the American political spectrum. The Court has fundamentally changed the nature of our society, remaking it in its own image, the image of liberal academia and particularly legal academia” (Graglia).
The relation here is much more complex than what the writer is trying to explain. First any change made by the Supreme Court is very calculated. The society has to be ready for it in the first place. Moreover, the society in many times actually needs it. So it is not by any means an enforcement of a specific idea over the society. Most of the decisions of the Supreme Court have had popularity- No matter how big or small-in the society. In many cases, the Supreme Court’s decisions were more reactionary than initiative. It is also the fact that the Supreme Court can not change a bill or an act unless it is challenged in front of the Court. Saying that does not mean that Supreme Court did participate in developing the culture of the American society. Cases like Brown v. the Board of Education stand clear in the American history, where the Supreme Court’s decision was very unpopular to many states and citizens. Considering this as judicial activism is what can be taken on the author. In many cases, any decision taken by the Court can be considered active. This applies to the above mentioned case of Empleme Court is very calculated. The society has to be ready for it in the first place. Moreover, the society in many times actually needs it. So it is not by any means an enforcement of a specific idea over the society. Most of the decisions of the Supreme Court have had popularity- No matter how big or small-in the society. In many cases, the Supreme Court’s decisions were more reactionary than initiative. It is also the fact that the Supreme Court can not change a bill or an act unless it is challenged in front of the Court. Saying that does not mean that Supreme Court did participate in developing the culture of the American society. Cases like Brown v. the Board of Education stand clear in the American history, where the Supreme Court’s decision was very unpopular to many states and citizens. Considering this as judicial activism is what can be taken on the author. In many cases, any decision taken by the Court can be considered active. This applies to the above mentioned case of Employment Divisions v. Smith. It also applies in Texas v. Johnson. In a demonstration against the Reagan administration, Johnson burnt the American flag. He was convicted of desecration of venerated object. The Supreme Court ruled that the state’s tendency to protect the symbolism of the flag does not justify the restriction of political expression (Irons). This is considered judicial activism because the Supreme Court invalidated the law of Texas. One can argue that if the Supreme Court had decided the opposite and upheld the law of Texas, it would have been also considered judicial activism because in doing so the Supreme Court favors the law of Texas against the First Amendment. So things are not clear, black and white decisions.
The writer then attacks the myth of the Supreme court using Tocqueville’s opinion, “Tocqueville's warning that the Supreme Court is more dangerous than Congress or the President, capable in the hands of "imprudent men," of giving the nation cause to fear "anarchy or civil war" has proven to be correct. (81) From Dred Scott, (82) which helped the onset of the Civil War, to the 1883 Civil Rights Cases, (83) which preserved racial segregation in public accommodations for an additional 81 years…” (Gragilia)
The writer is misleading the reader very clearly. The Court did not change the society as he claims. If it did, then it should have given Scout his freedom, or it would not have established the principle of Separate but Equal. The decisions in such cases were just a reaction to society. Moreover, the court was actually trying to preserve the culture of the society of that time. In other words, the Court only took such decisions because of the lack of the libertarian principle that he is attacking in the article. In The Dred Scout case, the court agreed that Dred Scout is a slave; not a citizen. Thus, he is not entitled to any rights by the constitution. It is very clear that such a decision is simply a reaction to the slavery situation in the society at that time. The court did not make Scout a slave, nor it made the people think of him that way.
The writer states that the constitutional law is a one-way ratchet moving the country with varying speeds in the liberal direction (Graglia). He further explains that one of the reasons for the march of liberal activism is that even the most conservative Justices for one reason or another sometimes lean and makes liberal decisions (Graglia). Does not that prove that this is the right thing to do? One can easily notice that through out the history, the Supreme Court has improved to be the nation’s most powerful branch. Leaning towards and defending liberty is definitely is a reason for the Court’s growing significance. Also through the history, one must admit that the Supreme Court has protected more than violated personal and state liberties. So this inexorable march towards liberal activism is simply the right thing to do. That is why it is so irresistible. The writer here should say what his take on this march in the liberal direction is. Why does he look at in such a negative way?
The Author does not acknowledge different views and facts about the topic. Through out the whole essay, he is only bringing up examples to support his argument and he does not mention the counter arguments. He did not mention how the Supreme Court is set up to get as diverse opinions as possible. It is also a fact that the Justices are very cautious in every decision they make, understanding the consequences and significance of their rulings. The Supreme Court for example did not expand the right for representation for those who could not afford a lawyer in Gideon v. Wainwright except after hearing many cases that reflected the need in the society to have such a law. For Example, in Carnley v. Cochran, where tow justice were absent-one retired and the other was at the hospital-, three of the seven justices sitting argued that Betts V, Brady should be overruled. They only needed Justice Brennan’s support to get the majority vote. Although Justice Brennan was of the same opinion, he simply declined voting instead to find Counsel needed to this specific case.
“Why did he do so? Perhaps he felt it inappropriate to overrule a constitutional decision with less than a full bench present, when the result might be said to depend on the accident of vacant seats. Or perhaps he and the others thought the grave steps of overruling should be taken more deliberately…” (Lewis).
In the last chapter, the author attacks the idea that the Rehnquist was conservative. He thinks that it was liberal, but only with a norm advancing speed to the liberal causes.
“The only reason liberal academics can denounce the Rehnquist Court as "right-wing" and see an urgent need for "balance" by appointing more liberals is that the Court's advancing of liberal causes is seen as the norm, really the point of constitutional law, while any deviation from that norm is seen as a virtual abdication of duty.” (Graglia)
If the conservatism of the Rehnquist does not please the writer, what is ideal conservatism that would please him? What kind of a Supreme Court he wants instead of the one the he does not like and accuses of being too active? These are question the writer should have answered, but he did not approach them by any mean.






Work Cited
Graglia, Lino A, the Myth of a Conservative Supreme Court: The October 2000 Term, Harvard Law Journals
Irons, Peter ed, and Stephanie Guitton ed, May it Please the Court, the First Amnedment, the new press, 1997

Lewis, Antony, Gideon's Trumpet, Vintage Books, 1964


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