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Brian Gilmore is a poet and public interest attorney and contributing writer with Ebony-Jet Online.
He is also a columnist with the Progressive Media Project.
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Judicial activism, and the use of the term, reminds me of my brother Mike's favorite saying - one man's terrorist is another man's freedom fighter. This is true. In fact, truth is the law is an activist sport, by nature. Applying that to the history of the Supreme Court, here's the summary of the usual debate: conservatives think the Warren Court (Chief Justice Warren served from 1953 to 1969 as Chief Justice) was an activist court that made the law and didn't interpret the law. They still cite the Warren Court as problematic for the country's values. Black Americans, on the other hand, and other marginalized groups think the Warren court was simply enforcing the rule of law as it is written, but long denied to them due to discrimination and unequal treatment. Many others believe that the Warren Court was simply reinforcing the notion that the Constitution is a living document that must evolve in order to remain relevant. In other words, memo to Clarence Thomas and Antonin Scalia; this isn't 1789; this is 2009. With that said, one of the most activist decisions of all time was the Republican led Bush v. Gore. Somehow, the Republican appointees believed that George W. Bush, one person, was being denied equal protection of the laws because the state of Florida, decided to allow election canvassing boards to count the votes in their state in the election of 2000. It was a low moment in judicial history that reeked of activism. The Republicans fashioned a decision that stopped election activities of a state. Is this judicial activism? In June 2008, in the now famous Heller case, Justices Scalia, Thomas, Roberts, Alito, and Kennedy, found a right to bear arms in the U.S. Constitution even though the Court has never, ever, in its history found an individual right to bear arms. In fact, the Court held in 1939 just the opposite and such language is simply not in the Constitution. Is this judicial activism or neo-originalism? I always tell aspiring law students that what legal minds (judges, lawyers, etc.) do is reach their decision and then go back and find the justification for the decision. It doesn't happen the other way. Lawyers are lawyers. The law students are appalled but there is truth to it. Now, as for the McConnell-Sessions call for President Obama to not nominate a judicial activist, I urge him to respectfully tell them both, thanks, but no thanks. When I need your counsel, he should urge, don't worry, I know how to find you. And there might be a need for an activist on the court right now. Antonin Scalia, an alleged originalist, but really a conservative activist, is already there. There needs to be some balance to the activism. A little activism, if we accept the conservative line, destroyed Jim Crow, enshrined the right to a counsel in criminal proceedings in our lives, and provided women with privacy in reaching their very personal, and often difficult reproductive choices. If that is activism, let me have it, Prez. |
President Barack Obama has been advised by Senator Mitch McConnell, and Senator Jeff Sessions, to not name a "judicial activist." This is a fine time for the Republican opposition leaders to speak up againat judicial activism. The current Supreme Court has a couple of judicial activists on the court right now but they are Republican appointees.