On the Supreme Court, nearly every decision is 'activist'

In order to be confirmed by the Senate, nearly every Supreme Court nominee, be it Brett Kavanaugh or Merrick Garland, will stick to the script that they will just interpret the law according to the principles of the Constitution and will not legislate from the bench. They are just neutral umpires that “call balls and strikes.” If it were that simple and straightforward, justices could be replaced by robots or computers, which would make decisions much more efficiently and timely.

For appeals to reach the Supreme Court, cases must be decided at the trial court level and reviewed by at least one appellate court. Nearly all appeals are resolved by state courts of last resort or federal Courts of Appeals. Appeals that do reach the Supreme Court necessarily involve unclear legislation and most likely a conflict among laws, otherwise they would have been resolved earlier in the appeals process.

Because each side has a strong case, a decision either way can be justified by a long string of citations to the Constitution, laws and precedent. Moreover, because a strong case can be made for each side, the ideology of the justices — liberal or conservative — becomes more important when making their decisions.

In his commentary in the July 21 Virginia Gazette, Mr. Filko described the liberal and conservative wings of the Supreme Court. However, he extended that ideology to cover a separate, most misunderstood concept of “judicial activism/restraint,” or the attitude of judges toward the role of courts in society.

Indeed, many people conflate the ideology of liberalism/conservativism with activism/restraint. This conflation is done by equating conservative justices with judicial restraint — they only interpret the Constitution according to the intent of the Framers. Liberal justices, then, are judicial activists who expand the “living” Constitution to mean whatever they want it to mean.

But, both liberal and conservative justices can be “activists.”

Judicial activism is best understood in contrast with judicial restraint, or judicial modesty, if you will. A justice favoring limited and infrequent use of judicial power, exemplified by Justice Felix Frankfurter, believes courts should decide cases on the narrowest grounds possible, and to defer to the legislature and/or the trial court or jury whenever possible. Activists judges are more willing to use their powers to expand present policies. In fact, many would argue that the judiciary must be involved in policy decisions because the Congress is unwilling or incapable of addressing many key issues, too often tossing them to the courts.

How are conservative justices activists? According to the narrative, “conservative” justices read the language of the Constitution and from that develop principles which can be applied to cases coming before them. They use the literal interpretation of the textual language of the Constitution in their opinions to justify the decision.

Nevertheless, interpretation is required.

For example, freedom of speech is found in the First Amendment, and so should be defended strongly by liberals and conservatives.

“Literalists,” or people who look to the text for meaning, exemplified by Justice Hugo Black (way before Scalia), say all speech must be protected, even obscenity and libel, because the First Amendment contains no exceptions. But what constitutes “speech”? Justice Black defined speech narrowly to mean spoken or written words. Accordingly, it does not include “symbolic speech,” conduct such as wearing armbands in protest at school or burning the flag or draft cards.

Literalists such as Black would be appalled at how “activist” conservative justices have become, to the point now where speech is defined as money, and limitations on campaign contributions become a violation of free speech.

And what do conservative justices do when there is a conflict among valid, competing legal principles?

For example, discrimination because of race, gender or sexual orientation is an established principle and so is freedom of religion. What happens if they conflict, as in the recent cake-baking case? Closer reading of the Constitution will not resolve these issues; judgment is required. Those who believe in majority rule may come to different conclusions from those who believe that some principles of civil liberty are so essential to democracy that they must be given precedence over economic liberties.

In any event, what is a “conservative” justice to do in these cases?

If they were truly not “activist,” they should refuse to hear the case — call it a “political question” — and toss it back to Congress to clarify by amending current law? Or could they perhaps find some way to rule on procedural grounds? If they decide the case on the merits, aren’t they “activists” expanding the role of courts at the expense of the other branches?

In sum, if the Supreme Court is making decisions, it is making law, whether explicitly in “big” decisions or implicitly through an accretion of smaller decisions over the years that forms a pattern. The court decides which appeals to hear, and even a decision not to accept an appeal is a decision in favor of the status quo.

Decisions made on the merits require an explanation in an opinion with an articulation of reasons to justify those decisions, especially those that resolve conflict of laws, create new principles of law or reconcile disparate decisions made by lower courts. These opinions necessarily expand law to cover new circumstances and situations. They are publicly available, especially in this era of the internet, and can be read, analyzed and criticized. Mr. Filko is right in saying that more people should read them.

Flango has lived in James City County for 41 years and has studied courts as an academic and as a consultant for even longer.

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