On John Paul Stevens, Activism, and Finding a Ninth

It’s a question I get all the time:  Why did you choose law?

A couple of years ago, I might have told you it was the marketability.  Back then, young attorneys were instigating bidding wars among top firms just as sellers were playing offers against one another in the housing market.  But no more.  Many of my former classmates who went the daytime route and graduated ahead of me are still jobless.  Many first- and second-year associates I know have been forced to take massive cuts in salary, or have been parleyed into public service positions for half the pay.  One particularly brilliant and capable friend was laid off just last week.  It’s rough out there.

A couple of years ago, I might have said something about financial stability.  But I’ll tell you now as graduation nears, loan repayment looms and job prospects wane, I’m beginning to wonder whether I would have been better off handing that $140,000 to Bernie Madoff just as his world began to crumble around him.  So financial stability is out.

Now, however, when I get asked that question my answer is decidedly different.  And, frankly, I can never convey it just right.

See, there’s a certain equitablity about the rule of law in the United States of America.  As much as I enjoy the jab, feint, parry and thrust of the adversarial setting, as much as I really, really enjoy the competitive nature of it all, everything is done within the framework of that equitability.

I think that’s what drives me so crazy about judicial activism.  The Constitution of the United States of America specifically sets forth a number of enumerated powers which represent the limits of the authority of the federal government absent a constitutional amendment.  And rather than operate within those constraints and look to settle cases and controversies by discerning the plain meaning of the law, judicial activists look at the Constitution as a fast food menu of sorts, picking and choosing some provisions while ignoring others depending upon what the intended result demands.

It’s a disruption to that sense of equitability.  Instead of interpreting law, an activist judge facilitates social justice.

By all accounts, Justice John Paul Stevens is an absolutely wonderful and endlessly brilliant man.  In World War II he fought under the American flag, and almost a half-century later wrote a dissenting opinion in Texas v. Johnson, which deemed the desecration of the flag protected speech under the First Amendment.

“The case has nothing to do with ‘disagreeable ideas,’ [i]t involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset,” wrote Stevens, who earlier in his dissent characterized the flag as more than just a symbol of America, and “more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations … The value of the flag as a symbol cannot be measured.”

But Stevens, the modern patriarch of the Court’s Progressive wing, never let the constraints of the Constitution, stop him in any way.  In Thompson v. Oklahoma, addressing capital punishment for criminals 16-years-old and under, Stevens relied upon international law in making his decision.   In Grutter v. Bollinger, he voted in favor of maintaining affirmative action in the admissions process at the University of Michigan.  In Van Orden v. Perry, he joined the dissent against a decision which upheld the placement of the Ten Commandments on the grounds at the State House in Austin, Texas.  In U.S. v. Lopez, a very important gun case leading up to the seminal Heller decision, he so broadly interpreted the Commerce Clause–the same provision being used to constitutionally justify health care reform–so as to rationalize the regulation of firearms near school zones.  And the list goes on.

As the president looks to fill John Paul Stevens’ robe, I can only hope that he looks to someone less apt to render the rule of law malleable to fit an agenda.  As I wrote in advance of Barack Obama’s nomination of Justice Sonia Sotomayor at this time last year, Lady Justice wears a blindfold for a reason.  The law should not concern itself with strife, with circumstance, with matters of wealth, poverty, strength or weakness.  And the role of its arbiters should be an easy one to understand.  From Note the Blindfold, Mr. President:

The role of a Supreme Court Justice, Mr. President, is not to evaluate the matter at hand based upon the feeling in their “hearts.” Decisions and outcomes are to be based upon interpretation of the law and of the Constitution alone — not “empathy,” and surely not the ability to understand and identify with “people’s hopes and struggles,” as you said today. The role of a Supreme Court Justice, Mr. President, is not to make a decision based upon the interests of a single mother, a welfare addict or anyone else for that matter, just as the role of the judiciary is neither to favor the weak against the strong, nor the strong against the weak. When weighing a particular controversy, Mr. President, the role of a Supreme Court Justice is to instead look at the United States Constitution as written by this nation’s founders and interpret that document–preferably in as narrow a fashion as possible–as needed to adjudicate the controversy in question. At most, contemporaneous writings shedding light on the framers’ intentions and aspirations may be persuasive, but certainly not binding. Foreign law should never enter into the equation.

Mr. President, contrary to what you said in 2001, the United States of America does not need to “break free” from the principles put forth by our framers. As far as I can tell, the abandonment of those ideas and ideals is what got us here in the first place. Breaking free from the principles and values of those imperfect men is precisely why we stare a bloated government in the mouth and watch helplessly as our sovereignty and our freedoms erode by the minute.

Every single word, phrase and paragraph in our founding documents are there for a reason, placed there by people who fought, bled and died to make this country the antithesis of the tyrannical rule from which they escaped. This is a nation which, because of its founding principles, is a beacon of hope for those around the world who strive for freedom, opportunity and fairness. And now, Mr. President, a man who laments that the Supreme Court hasn’t simply tossed asunder the principles and aspirations of our founding fathers in the name of “economic justice” and “social engineering” has the opportunity to nominate a Justice to that Court.

Just like it should know nothing of rich or poor, male or female or gay or straight, the law should know nothing of liberal versus conservative. What the law should know is right and wrong, and it is that fundamental sense of fairness, that equitability, which should serve as the cornerstone of our judicial system.

That’s why the argument I’ve heard from so many on the left, that strict constructionist judges are activists in their own right, just falls flat.  To be an originalist is to keep and respect the rule of law.  To be an activist is to change the rules as time passes.

On a football field, or a basketball court, or a golf course, the ability of one group to unilaterally change the rules of the sport mid-stream would take away from the fundamental fairness of that game.  When it comes to matters of law, we have been given a timeless framework by our founders, and a set procedure through which to amend it.  As Barack Obama looks to fill the shoes of Justice John Paul Stevens, I can only hope that he’ll look at candidates who have an understanding of that framework, and of the equitability our judicial system affords.



  1. Gail B. says:

    It seems to me that you’re saying, “Since we have this wonderful United States Constitution, which government officials swear to protect and defend, why not stick to the purpose of freedom for which it was written, rather than assume the attitude of its being an obstacle in the path of Socialism?”

    I’ve wondered about that myself.

  2. John Buyon says:

    I got to agree with you Jeff, I distaste judicial activism but that includes right-wing activism ie citizens united case

    too bad we have even more judicial activism up here in Canada
    the whole point of a Constitution is to preserve the status quo, change comes from the legislature not from a supreme court

  3. Anonymous says:

    Home schooled children rock! My guitar student yesterday saw my book on the Constitution laying on the coffee table and he picked it up and we spent half our class time discussing several of the amendments in the Bill of Rights, especially 9 & 10.

    This 14 year old himself brought up the topic of any role our military could play to save this republic. I was stunned. Needless to say, most kids his age don’t have a clue what this country is headed towards.

    Hopefully the next justice has a firm grasp of the Bill of Rights.

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