Liberally Speaking (7/23/09)

The sticky problem with ‘judicial activism’

July 23, 2009

By Steve Mount

Federal judges and justices of the Supreme Court hold a unique position in our governmental system, with special protections for their positions enumerated in Article 3 of the Constitution. Specifically, the positions are appointed, the positions are held for life and while a judge holds a seat, his salary may not be reduced.

These three protections are notable for a few reasons. First, they tie directly to one of the complaints against the king the colonists listed in the Declaration of Independence. Second, they are designed to make the federal bench apolitical, allowing judges to focus on the law and ignore political considerations. Lastly, ironically, they make the process of confirmation particularly political.

As we saw last week with the confirmation hearings of Sonia Sotomayor, nominees come under intense scrutiny; indeed, the scrutiny is mandated by the Constitution, as part of the separation of powers. A potential justice must not only satisfy the requirements of the president but of the Senate as well.

Senators look for disqualifying comments or rulings; they dig for prejudices and bigotry; they look for indications of bad character or conduct unbecoming of a judge. Since the 1950s, Senators have looked specifically for something called “judicial activism.”

Judicial activism has no concrete meaning, but it is generally taken to mean a judge who would look at cases with some specific agenda in mind. They might find more weight in an argument that appeals to their political leanings than one that appeals to the letter of the law.

That’s what much of the lengthy questioning of Sotomayor was all about — an attempt to pin the “activist judge” label on her. Conservatives were gleeful when two comments by Sotomayor, in particular, came to light. The first was her now infamous “wise Latina” comment; the other was a comment where Sotomayor acknowledged a truism: That it is in the courts “where policy is made.”

To her first comment, Sotomayor’s backers pointed out that the comment, in context, is far less onerous than it has been made out to be. Sotomayor herself said that she made a poor choice of words, and that the comment was not meant to say that her life experiences made her a better judge than someone with different experiences.

What does this have to do with judicial activism? The message Republicans were trying to convey is that Sotomayor would go into the job thinking that her background gave her a better perspective on some cases than the experiences of the men on the Court, a perspective that would allow her to see a different side to a case, a side that was not in line with the law. And it is the law, after all, that judges are sworn to uphold.

Sotomayor’s response was basically this: She believes the law to be paramount, her comments and various interpretations of those comments notwithstanding. In my opinion, without a smoking gun to contradict her, she must be taken at her word on this point, as much as any person would be.

To her second comment, I noted that the “policy” statement is a truism. That may make some cringe, but it is reality. The legislative branch makes laws; the executive branch puts procedures in place to implement the laws; and the judiciary interprets the laws. Often, in the interpretation, policy is made.

Jeffrey Segal of Stony Brook University gave a perfect example: Recently, the Supreme Court ruled that a school official could be sued for having a strip search conducted on a 13-year-old girl believed to be carrying contraband ibuprofen. This is now a policy of the United States, a policy that is not found in the U.S. Code and not in the Federal Register, but a policy nonetheless. When the law and procedures are unclear, it is the courts that set policy.

This is not a liberal or conservative issue — it is simply a fact.

Looking for activist judges is a good thing. We do not want judges with an agenda sitting on the bench, especially the federal bench. The problem is in the widening definition of what it means to be activist. So long as only a few partisan Senators carry the banner ad nauseum, the process is safe. Congress must ensure that judges will not overstep their bounds. We, however, must ensure that in that quest, Congress does not overstep its own bounds.

Steve Mount has been a Williston resident since 1996. He is a software engineer at GE Healthcare and is devoted to his family, his country and his Constitution. You can reach Steve at or read his blog at