17 May 2004

Judicial activism

Fifty years ago today — within living memory — the United States Supreme Court overturned local law and custom in the landmark decision Brown v. Board of Education.

Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment — even though the physical facilities and other “tangible” factors of white and Negro schools may be equal.

  1. The history of the Fourteenth Amendment is inconclusive as to its intended effect on public education.
  2. The question presented in these cases must be determined not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the full development of public education and its present place in American life throughout the Nation.
  3. Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms.
  4. Segregation of children in public schools solely on the basis of race deprives children of the minority group of equal educational opportunities, even though the physical facilities and other “tangible” factors may be equal.
  5. The “separate but equal” doctrine adopted in Plessy v. Ferguson, 163 U.S. 537, has no place in the field of public education.

Today, the political Right in the US expresses great concern with what they call “judicial activism,” as demonstrated by the Warren Court which made this decision. As Thomas Sowell's essay Judicial Activism Reconsidered (the #2 ranked Google result for “judicial activism” at the time I write this) says:

If no authorization is needed for judges to introduce “change,” neither is it needed for generals and admirals to do the same — as in fact happens in a number of countries. Judges can conduct limited coups d'état surreptitiously, while a military coup is usually overt and sweeping. Nevertheless, the dangers to constitutional government are no less real in the long run from judicial activism — both because of the cumulative effect of small usurpations and because small usurpations both generate pressures and provide the precedents for larger usurpations by others with different social visions.

The claim that judicial activism is necessary to rescue us from bondage to the past — from having the writers of the Constitution “rule us from the grave” — defies both logic and history.

Such sober concern with the potentially overwhelming power of judges to usurp democratic governance! But surely that anti-judicial-activist article doesn't question the logic of the Brown decision, with its merits so obvious today?

Take another look at item b from the Brown syllabus above, then this from Sowell's article:

Advocates of judicial activism often refer to changes which have taken place, and others deemed desirable, as reasons for going beyond the original cognitive meanings of laws, including the Constitution. According to Justice William J. Brennan:
Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstances.
According to Justice Brennan, “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
Social changes — even changes of a profound and far-reaching nature — do not of course necessarily require changes in the U.S. Constitution. Many statutes and state constitutions serve as instruments of change, as do an ever-increasing number of administrative agencies at all levels of government, and an ever-expanding galaxy of private individual and corporate arrangements. The proposition that publicly desired changes are thwarted for lack of institutional instruments, so that judges are the public's last resort, not only flies in the face of this evidence but is also inconsistent with the courts' plummeting prestige as they putatively carried out the public's otherwise thwarted desires for change.

Oh. I guess Sowell does think that Brown was a bad idea. Not to worry, though. Mr. Sowell feels confident that other institutional instruments in, say, Arkansas, would have brought about school integration just as well. I find myself less confident, but I suppose reasonable people may differ.

Surely Mr. Sowell and most other commentators on the Right in their vigilance against judicial activism do not intend anyone to interpert their critique as meaning anything like the article “Judicial activism causes crime.”

Fraudulent, or at least speculative, Supreme Court opinions contemporaneous with the surge in crime rates not only made it a lot harder to lock up criminals, they also supported many other causes of crime.  They ruined our urban public school systems. Failed public schools lead directly to an increase in the criminal population.

Surely the sentiment that integration “ruined our urban public school systems” is rare on the Right. Surely discomfort with school integration is not at the root of the Right's objections to “judicial activism.” Surely there's some other explanation for all of the inbound links to “Judicial activism causes crime” that make it rank #1 on a Google search of “judicial activism.”

Update: It turns out that conservatives are quite comfortable with judicial activism for their causes.

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