I've been having a really interesting series of back-of-forths with Steve, over at Random Rants and Inquiries, regarding activist judges. (You can see our comments, if you want to, here and here.) Because I was so interested in what Steve had to say, I carried the discussion over to a lunch with a friend of mine who is a conservative lawyer. Speaking with him made me realize that my initial take on what constitutes an "activist" judge is too broad and facile. My friend came up with a much better definition of an activist judge. He pointed out that the balance of power between the legislative and the judicial process is that it is the legislature's responsibility to begin things -- to create or change laws -- while it is the judiciary's role to have the final say. In his view, judicial activism occurs when the judges step in without giving the Legislative process a chance to play itself out. I think this is perfectly right, and sidesteps the problem of whether judges should be doing the type of interpretation they're now engaged in. It isn't that the shouldn't be interpreting the laws; it's that they shouldn't be diving in with opinions and interpretations before the democratically elected legislatures (state and federal) have had a chance fully to play out their role. Interestingly, on the same evening my friend and I had this conversation, I came home to find the most recent New Yorker in the mail. In this edition, there is a fascinating profile of Justice Scalia. (You can read an interview with the profile's author, Margaret Talbot, here.) That profile reveals that even some of the liberal justices felt that the Roe v. Wade decision was in error, since it short-circuited the legislative process. In her on-line interview, Talbot, when asked about the nexus between Scalia's "originalism" and his views on abortion, has this to say:
How does his stance on abortion fit into that philosophy? He would say: I look at the Constitution and I don’t see anywhere in there anything about a right to abortion. And, furthermore, I don’t see anywhere in there the right to privacy or autonomy that some people extrapolate from the Constitution to support the right to abortion. If you want legalized abortion—or any other new right—he would argue, you need to convince your fellow-citizens and pass a law. Unelected judges have no particular ability to divine what the moral standards are out there, and it’s anti-democratic for them to impose their views.Talbot's comment about Scalia distills for me the essence of the problem I have with activist judges. Rather than waiting out the legislative process, it leapfrogs its way over to unelected judges, which I view as a profoundly undemocratic process. As I've said before, this is the single bad legacy of the Civil Rights movement -- the liberal's belief that they should never wait for the legislative process, but should immediately shop for a sympathetic judge to deliver the final word on any subject.