Activist Judges

I am in the middle of an email conversation with my favorite conservative blogger (and a long distance friend I hope). We're discussing judicial activism. My initial comment went like this:

I'd like to know, besides Roe v Wade, what other big judicial activist cases don't you like? How about Brown v Board of Education or Loring v Virginia. They were both clearly activist decisions weren't they? Should they also be overturned? Should we take away the rights given to blacks in these cases?

He resonded with this:

Oh, please, you're better than that. Arguing that someone who opposes judicial activism is opposed to Brown vs. Board of Education is torching a straw man.... Affirmative action has never been passed by a legislative majority; it has been entirely created through executive orders and judicial rulings. This is, in my humble opinion, wrong; it short-circuits the part of the government that is meant to make the laws on a fundamental question; that is, is there a situation in which judging someone by their skin color is okay.

My attitude on gay marriage is similar. If a law establishing gay marriage pass a legislature, that's building a majority and a consensus; gay marriage supporters "win" fair and square. When a group of judges orders the legislature to change the laws, then the judge is telling the other branches of government, "your opinion, judgment and views do not matter. I am dictating what the laws will be."


My follow-up talks in more depth about Brown and Loring, and uses my conservatives logic as a possible outcome:

Maybe I tended a little toward hyperbole with the Brown vs. Board of Education analogy. But then and, based upon your logic, maybe I didn’t.

Your logic regarding gay marriage could be used with regard to Brown and Loring couldn’t it?

Here’s a bit of history relating to Brown to place it in context:

The U.S. District Court for the District of Kansas heard Brown's case from June 25-26, 1951. At the trial, the NAACP argued that segregated schools sent the message to black children that they were inferior to whites; therefore, the schools were inherently unequal. One of the expert witnesses, Dr. Hugh W. Speer, testified that:

"...if the colored children are denied the experience in school of associating with white children, who represent 90 percent of our national society in which these colored children must live, then the colored child's curriculum is being greatly curtailed. The Topeka curriculum or any school curriculum cannot be equal under segregation." [6]

The Board of Education's defense was that, because segregation in Topeka and elsewhere pervaded many other aspects of life, segregated schools simply prepared black children for the segregation they would face during adulthood. The board also argued that segregated schools were not neccessarily harmful to black children; great African Americans such as Frederick Douglass, Booker T. Washington, and George Washington Carver had overcome more than just segregated schools to achieve what they achieved. [7] http://www.watson.org/~lisa/blackhistory/early-civilrights/brown.html

The US District court held that this segregation was allowed basing it on Plessy vs. Ferguson which allowed separate but equal school districts.

It was appealed to the US Supreme court.

On May 17, 1954, Chief Justice Earl Warren read the decision of the unanimous Court:

"We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does...We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. [12]

The Supreme Court struck down the "separate but equal" doctrine of Plessy for public education, ruled in favor of the plaintiffs, and required the desegregation of schools across America. http://www.watson.org/~lisa/blackhistory/early-civilrights/brown.html

Now, in this case, no legislative action to undo “separate but equal” had occurred. In fact, those who supported separate but equal had “won” fair and square. And, looking at the Board’s defense, it’s clear no action was likely to be forthcoming any time soon. Should that law have stayed on the books until those who wanted it removed could obtain enough support to win legislative action?

About Loring vs. Virginia, here is a bit of detail:

Loving v. Virginia
Richard and Mildred Loving were married in 1958 in Washington D.C. because their home state of Virginia still upheld the antimiscegenation law which stated that interracial marriages were illegal. They were married, then lived together in Caroline County, Virginia. In 1959 they were prosecuted and convicted of violating the states's antimiscegenation law. They were each sentenced one year in jail, but promised the sentence would be suspended if they agreed to leave the state and not return for 25 years. Forced to move, they returned to Washington D.C. where, in 1963, they initiated a suit challenging the constitutionality of the antimiscegenation law. In March of 1966, the Virginia Supreme Court of Appeals upheld the law, but in June of 1967, the U.S. Supreme Court unanimously ruled the law unconstitutional. Thus, in 1967 the 16 states which still had antimiscegenation laws on their books were forced to erase them. http://www-personal.umich.edu/~kdown/loving.html

This is the 15th Amendment to the Constitution:

Amendment XV.]

Section. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section. 2. The Congress shall have power to enforce this article by appropriate legislation.

In this case, it would seem pretty clear that Virginia had enacted a law whereby the supporters of antimiscegenation had “won” fair and square. Should the law have remained on the books until those who opposed it could find legislative remedies?

The bottom line is, the US Supreme Court is there to determine if laws are legal and within the bounds of the US Constitution, right? Didn’t the Supreme Court do exactly this when they ruled in these two cases? And, if you don’t think so, how do you think this country would look today?

In the end, I suppose one person’s judicial activism in another’s appropriate legal ruling based upon interpretation of the Constitution. I guess if you hold the Constitution to its literal wording and work from the idea that judges can only rule based upon the founders original intent, than this country as we know it today looks nothing like the original idea of our founders. Is that good or bad? Personally, I think it’s not a matter of good or bad, it’s an inevitable response to the passage of time and the evolution of ideas.



Am I wrong? Is there no correlation here?