Judicial politics? What's new?

The courts are at it again. They are meddling in the California recall election just as they did in the presidential election. They take sides in public affairs, seeming more political than judicially neutral.

Of course, only a blind apologist for the judiciary would deny that the courts and judges are highly political. They impose their views on political issues, take sides in the national debate, make law, and divide along ideological lines - much like the political parties in government and the public itself.

Americans know this. They're well aware that voting for a Republican usually means voting for conservative, traditional-value, law-and-order judges. Likewise, voting for a Democrat typically increases the chances that liberal, less traditional, civil-libertarian judges will be appointed.

Courts today, both federal and state, render decisions on the most politically charged, divisive issues: affirmative action, gay rights, gun control, school prayer, the death penalty, the right to die, tort reform, public education, school vouchers, and so on. Virtually any question touching on our most fundamental values seems eventually to reach the judges.

Not surprisingly, when courts decide these issues, the ensuing critiques, both on and off the bench, are typically divided along ideological lines. To critics, the decisions are activist and political, and the courts are making law. To supporters, the same decisions are courageous and principled, and the courts are faithfully upholding the Constitution.

In the Bush v. Gore litigation that settled the 2000 presidential election, the critics and supporters were just as expected. The Supreme Court's ruling halting the Florida recount and thus ensuring Mr. Bush's presidency was decided by the five more-conservative justices over the objections of the four more-liberal ones. Republican politicians and commentators overwhelmingly agreed with the court's reasoning. Just as overwhelmingly, Democrats condemned the decision, many charging the court's conservative majority with crass partisanship. Only days earlier, the roles were reversed when the Florida Supreme Court ruled in favor of Gore.

The recall election of California's Democratic governor was recently delayed by a particularly liberal three-judge panel of the Ninth Circuit federal appeals court. Congratulatory supporters and appalled critics will surely switch sides if that decision is overruled.

The same phenomenon exists at the state level. Hot-button political debate often surrounds state court cases involving such matters as equal rights for gay couples, the financial crisis in poor school districts, and the countless issues in state criminal, environmental, and equal opportunity laws. The reality at any judiciary level is inescapable: courts, judges, and politics are inextricably bound.

One prominent critic of the judiciary charged the courts with treating the Constitution as little more than "a thing of putty," and construing the laws as mere "ambiguous text[s] to be explained by sophistry into any meaning" a partisan judge would want. A prominent supporter, on the other hand, recognizing the "immense political influence" of the courts, lauded the role they play as "one of the most powerful barriers which has ever been devised against the tyranny" of the executive and legislative branches.

The speakers were not political adversaries taking sides on a current legal issue. Rather, they were Thomas Jefferson and Alexis de Tocqueville, commenting two centuries ago on the power of the courts early in the Republic.

The Supreme Court, filled with partisan Federalists by George Washington and John Adams, was construing the Constitution to enlarge the authority of the new federal government - including that of the court itself - and to restrict the power of the states. Jefferson complained that the Constitution was being rewritten by political judges.

But during their presidencies, both Jefferson and his political ally, James Madison, appointed judges exclusively from their own party. It was then the Federalists' turn to decry the judiciary. The courts have been shaping and shaped by politics ever since.

Later in the century, federal and state courts began to thwart legislative efforts to regulate industry. Laws setting minimum wages, maximum hours, labor rights, and similar issues were invalidated for various reasons, often as violations of economic liberty or states' rights. Liberals were outraged at the courts' political activism on behalf of business. Ultimately, a frustrated FDR, pressing his New Deal initiatives, threatened to pack the Supreme Court. That was obviated, however, when one justice switched sides; the court's direction changed, and Roosevelt had the opportunity to appoint his own judges and justices.

Decades later, it would be conservatives condemning judicial activism. The Supreme Court in the 1960s began scrutinizing government actions more rigorously for the protection of civil rights and liberties. Liberal Democrats no longer wished the courts to defer to the other branches. Conservative Republicans, on the other hand, preferred judicial restraint in applying constitutional rights.

Four hundred years ago, Sir Edward Coke, the Lord Chief Justice of England, declared the power of courts to nullify government actions that violated fundamental legal principles. Neither Parliament nor the king was amused and, shortly thereafter, his lordship was removed from office.

Nevertheless, the American colonists embraced Coke's notion and, only a few decades following independence, de Tocqueville would marvel at the political power exercised by our judges. That power and its exercise haven't waned. Nor, as Lord Coke's judicial heirs have learned, have the political criticisms and repercussions.

Vincent Martin Bonventre is a professor at the Albany Law School. His new book is 'Streams of Tendency on the New York Court: Ideological and Jurisprudential Patterns in the Judges' Voting and Opinions.'

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