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California Rules! (cont’d)
In Washington state in 2006, for instance, Supreme Court Justice James Johnson did not content himself with his kingmaking role in a 5-to-4 vote rejecting equal-marriage claims of same-sex plaintiffs. He added insult to injury, lecturing his dissenting peers: “Where courts attempt to mandate novel changes in public policy through judicial decree, they erode the protections of our constitutions and frustrate the constitutional balance, which expressly includes the will of the people who must ratify constitutional amendments.” He damned “judges’ subjective feelings” in favor of their supposedly “objective consideration of historical understanding.”
Both balance and a sense of history mean little to the right wing. For the past five years, the charge of judicial activism has become an unexamined codeword for incongruity with their ideology. “The truth,” wrote Paul Waldman recently in The American Prospect, “is that an ‘activist judge’ is a judge who makes a decision conservatives don’t like.” Reporters, lawmakers, candidates for office, and professors of law and policy have an obligation to call out the strategy for mislabeling judges as captives of partisan marching orders.
Waldman marshals three separate studies, one by Thomas Miles and Cass Sunstein of the University of Chicago, to show that so-called conservatives on the bench are the ones remaking the law in the heat of their zeal and the dim light of ideology. Real judicial activism—or the willingness to maintain partisan lockstep in rejecting precedents, lower-court holdings, or agency decisions—is most pronounced among right-leaning judges themselves. On the Supreme Court, Scalia and Thomas are the worst offenders.
For the past eight years, through two additions to the Supreme Court and a drive to end the filibuster, this phrase has been the right wing’s smoke and mirror. It hides the inhumane priorities of and disguises conflicts among the ideologues who deploy it. Yet it still reflects back on them, like a case of psychological projection.
In contrast to the duplicity and distortion that has afflicted judicial politicking in the Bush era, the California ruling gives rise to a new rallying cry: judicial counter-extremism. That philosophy links the public, legislators, the president, and judicial appointees in a coherent theme for governance aimed at overcoming bias.
The unifying goal of counter-extremism is strikingly consistent with the philosophy of Barack Obama. His appeals for votes and primary victories highlight the key role he sees for fair-minded Republicans and independents in his Democratic coalition. Selected appointees with progressive values and GOP pedigrees would throw a wrench in the attack machines of the right wing. On the marriage case in particular, he “respects the decision of the California Supreme Court” and “opposes all discriminatory constitutional amendments, state or federal.”
The staying power of the new California ruling hinges on the fall. A referendum to undo it by amending the state constitution to outlaw same-sex marriages may appear on the Nov. 4 ballot. Whether more Americans than those in California and Massachusetts get a taste for real equality may be riding on who names the next cast of federal judges. They will referee the coming conflicts between equal protection, unequal treatment, and the Defense of Marriage Act inherited from the Clinton years.
Taking up the theme of judicial counter-extremism might turn the tables on the right wing’s tired refrain of judicial activism and give Obama mileage. By revealing the stark choice between him and an extremist-hugging McCain on the issue of judicial appointments, it might help Obama turn the tide.
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