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Jack Rakove: Just who's responsible for activist courts?

[Jack N. Rakove, a Stanford University history professor, won the 1997 Pulitzer Prize for "Original Meanings: Politics and Ideas in the Making of the Constitution."]

Enjoy the holiday season while you can. Once it's over, the Senate Judiciary Committee will open its hearings on the nomination of Judge Samuel Alito to the Supreme Court. Once again, we will have to steel ourselves to withstand Sen. Joseph Biden's rambling disquisitions on the Constitution, while we marvel at how well the nominee manages to disguise his deep conservatism.

Once again, we will be reminded that Americans spend more time and energy worrying about the meaning of their Constitution than any other people on Earth.

Its interpretation is the subject of repeated controversy. We disagree about the meaning of key provisions of the Constitution, about the rules for its interpretation, and even about where the final power of interpretation should rest.

Our political disputes regularly escalate into constitutional quarrels, and our reading of the Constitution frequently reflects our political preferences.

This might be a good time, then, to ponder this deceptively simple question: Why do Americans argue so much about their Constitution?

To this question one might offer an equally deceptive answer. The primary fault lies with the exercise and baneful excesses of "judicial activism" during the heyday of the Earl Warren and Warren Burger courts -- the two decades of rights-enlarging, values-imposing jurisprudence that began with Brown vs. Board of Education in 1954 and reached its climax with Roe vs. Wade in 1973.

To liberals, of course, this was the Supreme Court's heroic age. Not only did the court begin the legal dismantling of Jim Crow segregation, it also remade the political landscape with the one-person, one-vote reapportionment decisions of the early 1960s, revolutionized the criminal justice system in every state; sanctioned affirmative action and established a fundamental right to privacy that covered not only abortion but ultimately sodomy.

The conservative hue and cry against judicial activism has been a reaction against these perceived excesses. Only Brown vs. Board has been beyond reproach.

Virtually everything else the court accomplished during that era has come under the strict critical scrutiny of conservative commentators, who attained an intellectual respectability in the final two decades of the last century that they had largely forfeited during the preceding 50 years since the New Deal.

Their criticism has extended not only to the substance of what the court did but to the constitutional propriety of opening so many fundamental questions to judicial decision.

Insofar as liberals came to prefer pre-emptive judicial decisions to the painstaking work of securing desired reforms through political coalition building, conservatives had ample room to abuse judicial activism.

It would be easy to argue that our unshakable habit of arguing so much about the Constitution is merely an expression of our continuing disagreement over this legacy.

Liberals desperately struggle to defend the good work the court did, with abortion looming as the critical bastion to be held at all costs.

Conservatives, meanwhile, pursue a strategy of rollback, desperately seeking that elusive fifth vote to undo Roe, put prayer back into the classroom and pursue other goals.

There are two problems, however, with the notion that judicial activism is the best answer to our deceptively simple question. One is that the concept of judicial activism is itself too flabby, subjective and imprecise to explain or describe much of anything. It is more a term of opprobrium than of serious analysis.

Any decision we dislike can be labeled activist, especially when a plausible case can be made that a court (or The Court) has intervened to decide some question better left to another institution.

Bush vs. Gore was as "activist" a decision as Roe vs. Wade, but we won't hear conservative commentators arguing that the Supreme Court should have adhered to existing understandings and allowed either the Florida Supreme Court or Congress to resolve the great recount debacle of 2000.

But the second and greater problem with attributing our constitutional travails to judicial activism is that it makes courts responsible for the sins of citizens.

The real activists in our system are not judges fishing for cases to hear so that they can impose their superior moral wisdom on a supine society.

We are the culprits here, because when we feel our just rights have been infringed, we expect courts to be responsive. If a plausible constitutional claim can be made -- about our freedom of speech or religious expression, about our treatment by government officials, or the regulation of our property -- then, by golly, some court ought to consider the redress of our grievance.

It is true that this resort to the courts has been promoted and even provoked by energetic interest groups eager to find just the right litigant to challenge one policy or another. The great pioneers here were liberal interest groups like the NAACP and the ACLU.

In the 1920s and 1930s, each forged legal strategies to attack segregation and defend civil liberties. Neither attained immediate success.

But ultimately they did, and their example has since been emulated across the political spectrum.....
Read entire article at San Francisco Chronicle