`Judicial activism,' from left or right, undercuts rule of law

September 06, 2005|By E. Thomas Sullivan

IT HAS BEEN 11 years since the newest member of the Suprme Court, Justice Stephen G. Breyer, was confirmed (in 10 days) to replace Justice Harry A. Blackmun.

What can we expect as the leading theme for the hearings on the nomination of Judge John G. Roberts Jr. as the new chief justice? It can be summed up in two words: "judicial activism."

So what is judicial activism and why is it so important?

It is judicial decision-making largely driven by ideology or some form of political theory or philosophy, whether on the left or the right. A judge engaged in judicial activism has an overarching ideology or theory that he or she seeks to incorporate and embed in each decision. Especially at this tipping point in the court's history, the Senate debate on the proper role and limits on a judge's decision-making can be expected to be especially intense.

In contrast to this, "results orientation" is an approach that takes each case on its own merits, citing precedent, and with the facts of the case being a large influence in the context of the decision. Justice Sandra Day O'Connor held a deep respect for facts, precedent and legal process. Likewise, Justice Anthony M. Kennedy and Justice Breyer are examples of justices whose decisions largely are dictated by facts, prior decisions and pragmatism.

All of these judges would subscribe to the wisdom of the great American philosopher William James, who once wrote: "Theories [are] instruments, not answers to enigmas, in which we can rest." Such judges are by no means infallible, but they are often unpredictable, in the best possible way.

Justice Benjamin N. Cardozo, who served from 1932 to 1938 and was another eminent jurist in our legal history, expressed the role of appropriate constraint in his remarkable book The Nature of the Judicial Process, published in 1921. Mr. Cardozo fully and frankly acknowledged that judges are guided and shaped by instincts, beliefs and convictions. But he counseled that they are restrained in various and subtle ways by legal principles, precedent and history.

As the Judiciary Committee hearings move forward, we should remind ourselves that it is not acceptable for an activist justice to bring to court each day a well-rehearsed, well-worn ideology and to routinely superimpose this upon the parties to the case before him or her. To do so is entirely at odds with our highest aspirations that our constitutional democracy is based on the rule of law.

Ironically, there are voices on the right and left today that call for judicial activism to make changes in the law that fit their political and social ideologies. Both the right and left, by urging their form of judicial activism, advance a deconstruction process that argues that no one is neutral and that all legal decisions are relative and subjective -- entirely malleable and subject to one's political agenda.

The new twist today is that there is so much special interest money behind the call for judicial activism, although frequently different terms are used to support each position.

In her moderation, Justice O'Connor, who is retiring from the Suprme Court, has left important footprints. Let us ask no more and no less of Judge Roberts and the Senate Judiciary Committee as the nomination moves forward than that they respect that legacy.

Where does Judge Roberts stand? We should be listening carefully and keeping an open mind as the hearings proceed. There's a great deal at stake.

E. Thomas Sullivan, a former dean of the University of Minnesota Law School, is senior vice president and provost at the University of Minnesota.

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