Trevor Brookins

*With the questioning and possible confirmation of proposed Supreme Court Justice Elena Kagen there is the obligatory hand wringing by conservatives over what is assumed to be a liberal leaning mind.

One of the favored arguments against liberal judges is that they are activist – meaning their decisions on cases take into consideration their vision for society as much as, or even more so than, the facts of the case in question.

On its surface such behavior on the part of the judges would seem autocratic and undemocratic. Nevertheless judicial activism is a tradition of behavior almost as old as the country itself and is part of the Constitutional job description of a Supreme Court Justice.

To speak negatively of activist judges as attempting to change society is to scapegoat them unfairly for the inevitable evolution of the country. The Constitution was written by men who had settled and developed an agricultural aristocratic society on the eastern coast of North America which relied heavily on chattel slavery.

The founders of the United States were not anticipating the specifics of movements for citizenship privileges by women or ethnic minorities, westward expansion might be undertaken, or many of the technological advances that have come to define our society. That is to say, to argue against activist judges because their decisions are contrary to the original intent of the Constitution is a moot point. The society that they established and lived in has been forever altered and so contemporary judges must assess cases in today’s context.

The founding fathers of the United States did however outline basic principles that define interactions between individuals, between states, and between individuals and states. Among these principles are private property and personal freedom.

Activist judges are essentially engaging in judicial review. In considering their vision of what American society is and/or should be according, they are attempting to make sure that the evolved concepts of private property and personal freedom remain paramount in American society. Over time those attempts have inspired judges to declare certain laws unconstitutional and to expand or contract the purview of other laws. Indeed the Constitutional function of the judiciary is to interpret all of our country’s laws and determine which line up with those founding principles. From this perspective activist judges are more of a reflection of the changes in society rather than the cause of changes in society.

The ability of a society to become more permissive rather than more restrictive is a key component of the attack on activist judges. They are seen as speeding up the process of the decay of the United States. But much to the contrary the judicial system as a whole is the most conservative branch of government. The reality is that judges hardly ever take the first step in initiating social or cultural change – Brown vs. the Board of Education was predated by Jackie Robinson by seven years. Activist judges are not activist at all. If anything they are reacting to changes in society and reaching decisions that adhere to the law while reflecting and solidifying changes in society. To engage in such behavior is not criminal or un-American. In fact, because the United States has been at the forefront of change in Western society since its inception, it can be said that these judges are the most “American” of all.

Trevor Brookins is a free lance writer in Rockland County, New York. He is currently working on a book about American culture during the Cold War and he maintains a blog called This Seems Familiar.  You can reach him at [email protected]