Judicial Activism

Los Angeles Daily Journal

January 27, 2010, Page 6

Enough With the ‘Judicial Activism’ Shtick

By Gideon Kanner

Ho, hum. Another earthshaking 5 to 4 decision by the Magnificent Nine, and another raft of outcries about the sin of “judicial activism.” The end of the political world is at hand, say the losers in Citizens United v. Federal Election Commission, and from now on, the dreaded corporations and big labor unions will be able to buy elections like so many cantaloupes in the supermarket. Maybe. Then again, maybe not. The country has muddled through periods of unfettered freedom of expression in the past, and it will likely continue to do so now.

Erwin Chemerinsky seems untroubled by the government’s claim in Citizens United that under the invalidated law it had the power to ban books and motion pictures. He waxes wroth in the op-ed pages of the Los Angeles Times (“Conservatives Embrace Judicial Activism in Campaign Finance Ruling,” L.A. Times, Jan. 22, 2010), and reminds us that conservatives tend to preach against the sin of “judicial activism” but are themselves guilty of it, Citizens United being his “Exhibit A.” Maybe so. But Chemerinsky does not actually condemn “judicial activism” as such. What he kvetches about, is that the conservatives have taken a page from the liberals’ old play book and are reshaping law as the liberals have done in the past. To call it “judicial activism” is to utter a bit of empty political rhetoric. Denouncing significant court decisions as “activist” is a cliché that is up there in the same league as “rounding up the usual suspects.” All it really means is that the speaker does not like the decision in question.

Judicial activism has been a part of American judge-made law, at least since John Marshall astonished the civilized world by positing in Marbury v. Madison that American courts may invalidate duly enacted legislation when in the judges’ opinion it contravenes constitutional provisions. And out here in California, our Supreme Court held in People v. Anderson that it is a court’s imperative duty of the highest order to overrule prior constitutional law when the justices think that it is no longer consonant with social conditions, even if in that case the court turned out to be dead-wrong in its perception of how society viewed the death penalty.

So Chemerinsky may be right in deploring the hypocrisy implicit in rhetorical posturing about “judicial activism,” but if the conservatives who hail Citizens United are hypocrites, so are the folks on Chemerinsky’s end of the political spectrum. So what? As the French put it, tu quoque is not an argument, much less a legal argument, and if the left can tango to the tune of activism, why not the right?

Being a bit older than Chemerinsky, I vividly remember those heady days of yore when changing things legal was the cat’s meow. I remember how the newly muscular plaintiffs’ bar was storming “the citadel,” and Melvin Belli of blessed memory was demonstrating how to shake things up by wringing big bucks from defendants and their insurers – all with blessings from on high. And who can forget the Warren Court’s romp through the Bill of Rights, discovering new, hitherto unperceived constitutional rights? Then there was the familiar Kabuki performance whereby judges with a record of many reversals were defended against charges of incompetence, and hailed as “courageous” because they were out to “change the system.” Remember the bumper stickers that said “Question Authority”? I do.

When I was in college, we didn’t know that watching on-screen sexual gymnastics was our sacred First Amendment right for which our forefathers fought and bled. We had to settle for some fraternity lads surreptitiously screening a grainy, black-and-white home movie of Candy Barr and friends doing their unmentionable things. It took judicial activism to allow us to see “Deep Throat” in living color, in the air-conditioned comfort of a movie theater, compleat with popcorn. Right on, man.

Here in California, it all reached a crescendo of sorts in 1972, when Supreme Court Justice Mathew O. Tobriner – as bright and noble a liberal as could be found on the California bench – took to the pages of the California State Bar Journal, with an article entitled “Can Young Lawyers Reform Society Through the Courts?” 47 Cal. S.B. Jour. 295 (1972). In it, Mathew the Reformer modestly called for a “social revolution,” no less, to be worked by – who else? – himself and his like-minded colleagues, at the behest of “young lawyers.” Never mind that in those days the revolution that young lawyers were into was the sexual revolution, and that their expertise lay largely in the use of mind-altering substances, rather than in social engineering. More important, Tobriner did not appear to be troubled by the problem that when people set out to make revolution, they invite a counterrevolution.

All of which, whatever your right-left orientation may be, is not the business you want the courts to be in if you have the slightest regard for the rule of law, and if you keep in mind the self-evident fact that tomorrow’s movers and shakers may have a different take on things than your favorites du jour.

Case in point: I remember how, during the Kennedy administration, the “cult of intelligence” was in, and America was into kicking ass. It was that administration that coined the term “managed news,” and, as comedian Mort Sahl learned the hard way, making fun of the Kennedys could be hazardous to one’s ability to earn a living, the First Amendment notwithstanding. But “Camelot” was the very thing and was loudly cheered. Then, one day, the tools of that muscular presidency fell into the hands of Richard M. Nixon, and the cheering stopped.

Then there was Chief Justice Roger Traynor, no mean legal activist-revolutionary himself. He pointed out in one of his law review articles that there are notions embedded in the law that have never been cleaned and pressed, and might disintegrate if they were. And deciding which “notions” are proper candidates for the judicial steam press, is something that every generation has to decide for itself. So said Justice Oliver Wendell Holmes. Does that mean that each generation, in addition to reshaping rules of law, gets to rewrite the constitution as it goes along? No, it does not.

If it were up to me I would opt for viewing the Constitution – all of it – as the “supreme law of the land,” just like it says, rather than as a smorgasbord from which to pick those rights one approves of while consigning others to “poor relation” status. But nobody asked me, and the fact that others may have a different take on what the law ought to be is what makes for lawsuits and what keeps lawyers prosperous.

But a line has to be drawn somewhere. Fiddling with basic constitutional rights on an ongoing basis, as Professor Lino Graglia once put it, causes constitutional text to become irrelevant to the subject of constitutional law, and that is not a good thing. I do not like the cynicism implicit in that line, but sometimes it is hard to argue with.

Bottom line: we should concentrate on the doctrinal underpinnings and substantive soundness (or lack thereof) of judicial decisions, and give the “judicial activism” shtick a deserved rest. And as for Citizens United, the striking down of a book-banning law may not be such a bad thing.

Gideon Kanner is professor of law emeritus at the Loyola Law School, and of counsel to Manatt, Phelps & Phillips.

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