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Judicial Activism: A Case In Point

With the selection of federal judges such a hot issue in the presidential race I expected more coverage during the election of specific Supreme Court cases that illustrated the points of contention. There were actually surprisingly few on display; I suppose that using “abortion” as a shorthand for all discussion of judicial philosophy is easier both on the public and on the press.

I wrote this to The New York Times to try to jump start a discussion. It was not published and the discussion never got going.

I chose this particular case because it seemed to illustrate perfectly what ‘conservatives’ conceive of as “Judicial Activism” — not necessarily that judges are “active” in overruling legislative prerogative but that they are “activist” in trying to achieve some notion of social good beyond the narrow bounds of what the law provides.

6 October 2004

With the significant possibility that the next President will nominate one or more justices for the Supreme Court it would seem that judicial philosophy should be a hotter topic in the Presidential campaign than it has been. It appears the New York Times has not yet found this story worthy, but here is an extract from a CNN report from late yesterday on arguments in a Supreme Court case involving a dispute over whether or not a particular law specifies a cap on damage awards in some tort cases:

“In oral arguments, the legal question focused on the meaning of the Lending Act. Justices grappled with whether it was their role to fix a sloppily drafted statute, and if so, what Congress intended when it appeared to drop the reference to a cap in subsequent amendments.

“”If they made a mistake, they made a mistake,” said Justice Antonin Scalia, who agreed with Nigh’s attorney, A. Hugo Blankingship, that a strict reading of the statute would not set a $1,000 cap for car loans.

“”The statute reads what it reads. It’s not my job to correct their mistakes,” Scalia said.

“A majority of the nine justices — David Souter, John Paul Stevens, Anthony Kennedy, Sandra Day O’Connor and Stephen Breyer — seemed sympathetic to the notion that a strict reading of the statute would be undesirable because it would cap damages on some loans but not others.

“Prior to the 4th U.S. Circuit Court of Appeals decision in Nigh’s favor that allowed the greater consumer damages, courts had held widely that Congress intended a $1,000 limit, several of the justices said.

“Souter noted as an example that the Lending Act specifically sets a $2,000 cap involving larger credit deals such as mortgages, but appears to be silent on car loans in the amended law, which the justice called “cuckoo.”

This is a perfect encapsulation of the difference in philosophy between ‘conservative’ strict constructionists and ‘liberal’ broad constructionists, and in fact an almost definitional example of what ‘conservatives’ mean when they speak of “judicial activism”. The ‘conservative’ Scalia says, “It’s not my job to fix their [Congress’] mistakes,” deferring instead to Congress to fix the mistake themselves, to act to make the law clearer if it doesn’t like the outcome. The ‘liberals’ — and ‘liberal’-leaning ‘center’ — of the Court say a strict reading of the law would be “undesirable” because Congress couldn’t possibly have meant it — it would be “cuckoo” — and would substitute their own judgment of what is reasonable for that of the Congress, not because there is any conflict between statute and Constitution but simply because they don’t like the result.

Even if those justices are right that the law, as written, is probably neither fair nor what Congress really intended, why does it not frighten ‘liberals’ to hand the authority to make that determination — and to re-write the law — to five appointed officials (a court majority) with lifetime tenure? Wouldn’t we all be better served if the Court instead pointed out the contradiction in the law to our elected representatives in Congress and allowed the legislative process to address it? Isn’t that how democratic government is supposed to work?

And, if it did, wouldn’t the prospect of new Supreme Court appointments be a lot less terrifying for those on the losing side of the election — whichever side that might be?

© Copyright 2004, 2005, Augustus P. Lowell

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