In my more than 30 years working with then-Senator Joseph Biden, I saw the confirmation process for U.S. Supreme Court nominees develop into an elaborate political dance, during which both sides trade charges that are largely predictable and often baseless.
One charge routinely offered by conservatives against Democratic nominees is that of "judicial activism." In the case of Judge Sonia Sotomayor, this charge was leveled by conservative interest groups even before her nomination. And it's been repeated, almost reflexively, by many of my Republican colleagues in the Senate. What's especially unhelpful about calling someone a "judicial activist" is that, most of the time, it's an empty epithet. As conservative jurist Frank Easterbrook has put it: "Everyone wants to appropriate and apply the word so that his favored approach is sound and its opposite 'activist.' Then 'activism' just means Judges Behaving Badly — and each person fills in a different definition of 'badly.' " The term activist, in other words, is generally nothing more than politically charged shorthand for decisions with which the accuser disagrees.
To support their claim that Sotomayor is an activist, critics point to a single case involving New Haven, Conn., firefighters, Ricci v. DeStefano . In Ricci , Sotomayor was part of a 3-0 decision supporting the trial court judge's ruling and the decision of the local government regarding the best way to determine promotions for firefighters. Later, a majority of the entire court of appeals ruled to let the panel's decision stand. There is no doubt that the case addresses a difficult set of issues and that the Supreme Court may come out the other way, though likely by a razor-thin margin. But Sotomayor's decision to defer to the democratically accountable, local New Haven government and rule along with the majority of her court not to upset settled precedent cannot meet any definition of "judicial activism." In fact, the complaint seems to be that she was not "activist" enough.
I don't mean to say that the term "judicial activism" is necessarily without content. Indeed, as recently reported in this publication by Marcia Coyle, legal academics and political scientists are hard at work trying to shape a set of common definitions. If we want to take the term seriously, it might mean a failure to defer to the elected branches of government; it might mean disregard for long-established precedent; or it might mean deciding cases based on personal policy preferences rather than "the law."
I think it's fair to say that, based on any of these definitions, Sotomayor has not been much of an "activist." In sharp contrast, however, the Supreme Court's current conservative majority has been highly so.
Let me give just a few examples. In U.S. v. Morrison , decided in 2000, the Rehnquist Court struck down a key provision of the Violence Against Women Act. Congress held extensive hearings, made explicit findings and voted, 95-4, in favor of the bill. An activist Court chose to ignore all that and substitute its own, constricted view of the proper role of the national government for that shared by both Congress and the states.
With the addition of Chief Justice John Roberts Jr. and Justice Samuel Alito Jr., the conservative majority of the current Court has continued to be highly activist, even though the two newest justices are not always candid about what they are doing. In fact, that charge has been leveled by no less an authority than Justice Antonin Scalia.
In the campaign finance case, Federal Election Commission v. Wisconsin Right to Life , the Court struck down key provisions of the Bipartisan Campaign Reform Act, again substituting its view of good public policy for that of Congress. But this was more than a failure to defer to a democratically elected body. The Court effectively overruled controlling precedent — McConnell v. FEC — while pretending that it was doing no such thing. Scalia called this, accurately, "faux judicial restraint."
In Leegin v. PSKS , the Court discarded 96 years of precedent in ruling that manufacturers may fix the prices that retailers charge. It elevated big manufacturers' interests over those of the consumer based not on any change in facts or circumstances, but rather based on the Court's embrace of a particular economic theory.
Then there's Parents Involved in Community Schools v. Seattle School District No. 1 , in which the Court rejected local community authority in the area of voluntary integration of public schools. Roberts' plurality opinion for the four-person conservative bloc gave scant respect to a long line of desegregation precedents that afforded local communities discretion in this arena. Remember that this is the same justice who, during his confirmation hearing, repeatedly professed his allegiance to stare decisis. If not for the opinion concurring in the judgment by Justice Anthony Kennedy, communities that want some modest measure of racial integration in their schools would be virtually powerless to act.
As these cases demonstrate, judicial activism is a two-way street. But what does the "activism" charge add to the debate? Unless we use the term with some precision, very little.
We have two choices: One is to agree on a useful definition of judicial activism and limit our discussion to cases that actually meet that definition. Under that approach, I expect that Sotomayor would be judged less "activist" than the current Court's conservative majority. The other option, perhaps more realistic, would be to abandon the term altogether, recognizing it for what it has become in the confirmation process — just a tired part of an old script.
U.S. Senator Edward E. Kaufman (D.-Del.) is a member of the Senate Judiciary Committee.
