The American Prospect has written a little guide for its readers explaining why Republican attacks will fall off Kagan like eggs off Teflon. You and I know that they won’t matter because of the Democratic majority, and maybe the American Prospect knows that too, because its defense is lazy. One aspect of the defense, however, caught my eye, and I wanted to share it with you:
She’s an activist.
Republicans have pointed to two things — Kagan’s clerkships for Thurgood Marshall and liberal judge Abner Mikva, and her admiration for Israeli Supreme Court Justice Aharon Barak, whom she praised as a “judicial hero” — as evidence that she is a judicial activist who tailors her reading of the law to whatever result she wants to achieve. Criticism of Marshall, though, isn’t likely to take Republicans very far. As the first African American on the court, he’s a largely unimpeachable figure. Democrats will also note that some conservatives have expressed admiration for Barak, including Justice Antonin Scalia, the current intellectual leader of the conservative wing of the court.
This kind of criticism would offer an opportune moment for Kagan to provide a liberal rebuttal to John Roberts’ hollow conceit about judges merely calling balls and strikes.
The Democratic response, though, will likely be a simple one. In terms of overturning precedent, this court is the most activist one ever produced. This may be effective, but it also reinforces the conservative canard that judges simply interpret the law as written rather than resolve the inherent and inevitable tensions between the principles and obligations outlined in the Constitution.
There are three arguments there. The first argument is that, simply because Marshall was the first black Supreme Court Justice, nobody can criticize his approach to judicial interpretation. It’s a closed subject. This is not an argument, of course. It’s the absence of argument.
The second argument is that the mere fact that Barak may have admirable traits means that he is off limits for criticism when it comes to his approach to judicial interpretation. Again, this is simply a way of preventing intellectual discourse, and shutting down argument ab initio.
The third and final argument is that, because Roberts’ court is the most activist ever, no one can criticize Kagan on the ground that she might be an “activist.” It’s this argument that intrigues me, because it shows how differently Lefties and Righties view the notion of judicial activism.
When conservatives think of activist judges, they think of judges who, at their core, are unconcerned with the limits the United States Constitution places on both federal and state governments in their relationship to the individual citizen. Their decisions are decided by references to natural law, and penumbras, and African tribal decisions, and Israeli Supreme Court decisions, and emanations and emotions. The Constitution, if it makes an appearance at all, is folded, spindled and mutilated into meaninglessness (there are those penumbras and emanations).
To the conservative mind, the anti-Constitutional bent of decisions made by liberal, or activist, judges, means that, to the extent a prior judicial decision violates Constitutional restrictions, that decision is invalid, and should be overruled. In other words, merely because a case exists, it is not automatically valid precedent. If the case was void ab initio, overruling the decision isn’t activism; it is, instead, a corrective act to reinstate Constitutional limitations on government.
To the Left, however, “activism” means any decision that overturns liberal precedent — even if that precedent is, in and of itself, unconstitutional. It’s therefore no wonder the Left is dismayed by the fact that the Roberts court is tidying up the record and reversing preexisting cases enacted by activist judges.