By Dan Kennedy • The press, politics, technology, culture and other passions

All appellate judges are activists

At TPMDC, Eric Kleefeld posts a statement from U.S. Sen. James Inhofe, R-Okla., saying that he’s concerned Judge Sonia Sotomayor might allow her “personal race, gender, or political preferences” to exert an “undue influence” over her decisions as a Supreme Court justice.

You’re going to hear a lot of this in the days and weeks ahead. Conservative critics seem to be oblivious to the fact that white men have both a race and a gender. I highly recommend Jeffrey Toobin’s recent New Yorker profile of Chief Justice John Roberts, who has emerged as a conservative activist judge whose world view is very much informed by his race and gender.

To listen to conservative critics of “activist” judges, you’d think that appellate judges would always reach the same conclusion as long as they are competent and free of bias. But we all know that’s not the case, and that judges are heavily influenced by their personal beliefs.

Sotomayor, for instance, is already under fire for her role in a New Haven affirmative-action case that has been appealed to the Supreme Court. But as Harvard Law School professor Charles Ogletree pointed out on CNN last night, “the Supreme Court will probably decide the case 5-4. Now, she’s going to be wrong. Maybe she is. But four justices on this court right now will agree with her.”

In other words, she’s a liberal, and she’s well within the mainstream of liberal jurisprudence.

It was interesting that President Obama announced the Sotomayor pick on the same day the California Supreme Court upheld a voter-approved constitutional amendment that outlaws same-sex marriage. The vote was 6-1. Earlier, the court had created a right of gay marriage by a margin of 4-3.

The California rulings show just how important the courts are in American life — and how judges, reading the same laws, come to entirely different conclusions. If that’s activism, then all appellate judges are activists.

Obama won the election, which means that we’re going to get liberal activist judges rather than conservative activist judges. That’s the way things are supposed to work.

Discover more from Media Nation

Subscribe to get the latest posts sent to your email.


Another public pension outrage (II)


For Jay Severin, every day is Groundhog Day


  1. Bill Baar

    I think the diference is between Judges who constrain and set limits, often in deference to the past; versus Judges who expand and create new intrepretations often based on changing principles i.e. right to marriage as fufillment of one’s being v progressive’s older frame of marriage as a kind of enslavement of women in the 60’s. Activism yes, but of very different sorts. Axelrod tells us he wants Judges who will fit the law to modern people yet people will Judge far faster than Judges.Sometimes Limits to what can and should be done make a whole lot more sense in rapidly changing times.

  2. meamoeba

    Seems to me that if Obama nominated Robert Bork, the nominee would be decried as left of Mao. Sotomayer is centrist. She’s written nearly 400 majority opinions and five — count ’em — five have reached SCOTUS. Three have been overturned, including 5-4 and 6-3 majorities and two have been upheld, again by split opinions.While excoriating her for her supposed lib bias, many have overlooked some decisions such as a 1999 case that allowed formerly suppressed drug evidence to be entered into a case even though police used a vacated warrant to seize the drugs. Seems pretty blue-friendly to me. The bottom line is, get over it, neocons. You lost. The election is over. Debate her quals on the merits without injecting uneducated and baseless prejudices into the argument.

  3. Joel Monka

    “To listen to conservative critics of “activist” judges, you’d think that appellate judges would always reach the same conclusion as long as they are competent and free of bias. But we all know that’s not the case, and that judges are heavily influenced by their personal beliefs.”From the book, “The Majesty of the Law”, chapter eight, by Former Supreme Court Justice Sandra Day O’Connor: “So the question remains: Do women judges decide cases differently by virtue of being women? I would echo the answer of another woman judge, Justice Jeanne Coyne, formerly of the Minnesota Supreme Court, who says that “a wise old man and a wise old woman reach the same conclusion.”” From the same book: “In class or in grading papers over seventeen years, and now in reading briefs and listening to arguments in court for fourteen years, I have detected no reliable indicator of distinctly male or surely female thinking–or even penmanship.- Supreme Court Justice Ruth Bader Ginsburg” I count that as three judges who would disagree with Judge Sotomayor’s “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” quote.That being said, I think- as I said in my blog- that she should should be confirmed without fuss, not because she’s the best pick, but because she’s the President’s pick, and he has the right to make that pick. If you disagree with that choice, take it up with the person who made the choice next election, not with the person chosen.

  4. arthur.kane

    Speaking of Jeffrey Toobin, in his “The Nine” he quotes the always commonsensical Sandra Day O’Connor – hardly a poster child for liberalism – as having said, “We’re a common law court, of course we “make” law as we go along.” Barron’s Law Dictionary defines Common Law as being based on precedent rather than statute and that its principles are based on justice, reason, and common sense. Those principles have been determined by the social needs of the community and have changed with changes in such needs. (emphasis mine). No lawyer I, but it seems to me, therefore, that – historically speaking — judicial activism has been embraced with equal fervor by both conservative and liberal justices.

  5. Dan Kennedy

    I’d say Arthur’s O’Connor quotes trump Joel’s O’Connor quotes.

  6. acf

    Whether a judge is an activist or a strict constructionist depends on whose ox is being gored. From the perspective of conservatives complaining about ‘liberal judges’, activist is an adjective meant to disparage one who makes judgments they disapprove of. On the other hand, ‘conservative judges’ behaving in exactly the same way, except arriving at decisions that conservatives agree with, earn the title ‘strict constructionist’. From my liberal perch, a mirror image appears, except the terms apply differently.

  7. Bill Baar

    Justice Scalia commented once he was not better a judge on the “moral” issues facing the court than any other citizen. He was thinking marriage and abortion. These are issues best left to the legislatures. A liberal Judge will think very differently and find an inherent right that allows a Judge to decide. It’s a big difference. It’s a big philosophical difference. I wouldn’t pooh pooh it as situational thing. If the voters of California defined marriage as allowing SSM, Scalia would back them.It’s a very different way of looking at life and society and ther purpose of the Constitution.

  8. mike_b1

    White men have agendas? As Dan wrote, liberals won the election. Conservatives — the six who are left — are weirdo freaks on the fringe of society, to be annoyed and ignored at our whim.Hey, look on the bright side: you can always go back to England!*Guffaw!*

  9. Nial Liszt

    **…she should should be confirmed without fuss, not because she’s the best pick, but because she’s the President’s pick, and he has the right to make that pick. If you disagree with that choice, take it up with the person who made the choice next election, not with the person chosen.**Sorry, it doesn’t work that way. Despite the wishes of the former VP, the Advise and Consent Clause is still part of the Constitution. President nominates, Senate consents.

  10. Steve

    via Christy Hardin Smith:Tom Fitton, the president of Judicial Watch, perhaps unwittingly summed up Republicans’ actual view of the Sotomayor nomination:David Shuster: “What evidence do you have that she would put her feelings and politics above the rule of law?”Tom Fitton: “Because President Obama chose her.”There you have it. Anyone Obama nominates is unfit, by definition. That’s the Republican position.

  11. Treg

    Mike’s right. Buncha lost souls, whining and obstructing because they can’t think of anything else to do.If I were advising a Republican senator right now, here’s what I would suggest: Put in a call to the president. Praise his supreme court nominee and assure him of your support.Then, publicly condemn all the stupid and pathetic, mindless smears against her.I.e., get with the winning side whenever you can. Opposing Sotomayer on the basis of her gender and ethnicity (er, I mean, her *empathy*) isn’t going to get you any points with your base back home. If it is, maybe you need to find a new base. Because we just elected a BLACK GUY president, and people like him!

  12. Joel Monka

    I don’t think Arthur’s O’Connor quotes trump my O’Connor quotes, because they are referring to different things. Common Law is not Statutory Law- it was never voted on by a legislature; it is the codification of culture and tradition. Of course judges must “make” common law; no legislature has spoken on the subject. That is not judicial activism; there is no statutory law to overturn, no original intent to consider. Judicial activism would be to overturn properly passed statutory law not for any constitutional reason, but because it offends some personal sensibility- that is what Justices O’Connor, Ginsburg, and Coyne meant; men and women alike can read what was passed by the legislature and apply it. Men and women alike can read the Constitution and apply it. Totally different situation from Arthur’s quotes.

  13. Joel Monka

    Nial, the “Advise and Consent” clause, like the other checks and balances, was not intended to allow a partisan legislature to effectively overturn the election by stripping the President of his authority. To use it under any but the most extreme circumstances is to defacto change our system of government from the strong presidential to the parliamentary without a conctitutional amendment. And yes, I am on record saying the same thing during the Bush administration.Elections have consequences, people; if you don’t like the results (and I don’t), work harder next time.

  14. Dan Kennedy

    Steve: As I said yesterday, I think the Republicans made a huge mistake in signaling ahead of time that they were going to fight anyone Obama chose.By doing that, they may have ensured that Obama would pick a judge more liberal than he otherwise would have — maybe even Elena Kagan, over whom many liberals would have thrown a fit.If you’re going to have a fight on your hands no matter what you do, you might as well push the envelope.

  15. Steve

    I don’t consider the Sotomayor nomination “pushing the envelope”. After all, she was acceptable to H.W. Bush. Obama will probably get at least 2 more Supreme vacancies (to replace Stevens and Ginsberg), and maybe as many as 4 (replacing Kennedy and Breyer) if Obama gets a second term.”Pushing the envelope” would be nominating someone like Pamela Karlan. I don’t expect President Obama to go there (or even get close).

  16. Nial Liszt

    Joel-As senator, Obama voted against the nominations of both Alito and Roberts.

  17. Joel Monka

    So he did. And? I disagree with him on a lot of fundamental things- but respected Senators like Moynihan and Lugar held my view, even when it meant going against their respective parties. I do not let the opposition define my principles for me.

  18. Dan Kennedy

    Steve: My point wasn’t that Sonia Sotomayor is Emma Goldman reincarnated. It’s simply that she was the most liberal of the candidates Obama was actually considering.

  19. Amused

    Whoa. The California same sex marriage ruling was based on interpretation the law as it existed at the time of the decision, hence a 4-3 majority.The latest case wasn’t on the issue of gay marriage, it was on the issue of the right to amend the constitution and whether it is possible for a constitutional amendment to be unconstitutional.These are not “different conclusions”, they are different issues.

  20. Dan Kennedy

    Amused: Right. In the first case, four came to one conclusion and three to another. In the second, five came to one conclusion and one came to another. I didn’t think I was being unclear, but perhaps I was.

  21. Steve

    Meteor Blades over at the Great Orange Satan explores “Judicial Activism”.Turns out that if you define “judicial activism” as the inclination to strike down Congressional laws, the leading activists on the court are Thomas (who voted to invalidate those laws over 65% of the time), Kennedy (64%) and Scalia (56%).Stevens, Ginsburg and Breyer are the least activist of the Supremes by this measure.

  22. Bill Baar

    Turns out that if you define “judicial activism” as the inclination to strike down Congressional laws…I think Judicial Activism is the inclination of some Judges to legislate new policy themselves.A Conservative Judge is about setting Limits on what Government should do. A Liberal Judge is about expanding what Government should do. So Conservative Judges striking down laws should be expected.American politics is the tension between these two outlooks.Neither is 100% right but as rule of them I’m, and I think most Americans, more comfortable limiting what Government does, than expanding what it does.

  23. Steve

    Bill – I take your point, but isn’t striking down laws passed by the elected representatives of the people just as much “legislating from the bench”?

  24. Nial Liszt

    Similar situation when Mass SJC decided unanimously in 2006 that a constitutional amendment ballot initiative on marriage was proper. The legislature ultimately defeated the proposed amendment in the necessary second constitutional convention vote.

  25. mike_b1

    Bill, something you keep forgetting in your “most Americans” (is that today’s version of the silent majority?) conjecture: Americans voted for Obama.You may not like it, but Republicans represent the lunatic fringe today, not the mainstream.

  26. Roswell

    To any republican, any decision they hate is done by “Activist” judges. Same decision by a conservative judge is well reasoned and well thought out and within the constraints of the Constitution as framed by the Founding Fathers.Look up hypocrisy…an elephant is pictured next to it.

  27. Michael Pahre

    As echoed by several people above, I agree that the code “activist judge” more often appears to be a comment by conservatives about liberal judges with whom they disagree on the substance of the issue — not really about judicial activism itself.Associate Justice Scalia arguably wrote one of the most activist opinions in recent years in last year’s majority opinion overturning Washington, D.C.’s gun control laws. Most people on both sides of the gun issue agree that the second amendment was written confusingly. Scalia’s opinion nonetheless effectively eliminated any consideration of the phrase containing the word “militia” when ruling that there was an inherent individual right to own a gun.That’s basically as activist as it comes: discarding some words in the constitution itself in favor of some other words in the constitution.And this activism by Scalia was just a simple federal extension of the activism that he believed state judges already possess, as Scalia himself argued in a 2002 case: “Not only do state-court judges possess the power to ‘make’ common law, but they have the immense power to shape the States’ constitutions as well.” [quotation in original]Opposition by conservatives to liberal judges is fundamentally just about the issues — not the invented hyperbole about some concept of “activist judges” — because these charges of judicial activism cut both ways.

  28. Rick in Duxbury

    Mike: 45.66% of the electorate is a “lunatic fringe”? Physician, heal thyself.

  29. mike_b1

    Rick: Can’t just go by the presidential vote. Look at Congress. Moreover, look at the percentage of voters calling themselves Republicans.Lunatic. Fringe.*Guffaw!*

Powered by WordPress & Theme by Anders Norén