The Injustice of Judicial Activism

     The rule of law is one of the main characteristics of good governance (“What is Good Governance,” 2009).  In simple terms, the rule of law “ensures that all citizens are treated equally and are subject to the law rather than to the whims of the powerful” (“Rule of Law”).  Laws being arbitrarily changed by the powerful entails a mockery of justice.  Both Kant and Aristotle would argue against this (“Kant’s Moral Philosophy,” 2008; “Aristotle’s Ethics,” 2007).  All the same, judicial activism continues to oppose the rule of law in courts of America.  Because judicial activism makes a mockery of the American legal system, it is imperative for American citizens to oppose this injustice whenever it happens.

     Judicial activism is known to occur when a judge makes a ruling that is contrary to law that has already been established.  Political scholars use the term to describe the disposition of judges to take account of outcomes, public policy issues, as well as attitudinal preferences while interpreting the applicable law in existence.  What is more, the term is often used pejoratively in the description of legal judgments that are based on a specific agenda that is thought to be endorsed by a judge (Franck, 2006; Kmiec, 2004).  In other words, judicial activism is believed to go against the rule of law seeing that the latter calls for “equal protection of human rights of individuals and groups, as well as equal punishment under the law” (“Rule of Law”).

     Today, judicial activism has a variety of meanings, simply because supposed activism with regards to legal judgments could occur in a variety of ways (Sowell, 1989).  The most debated cases of judicial activism occur when courts of law given the job of exercising judicial review strike down those statutes which they think are unconstitutional.  Given that there are a variety of interpretations of the Constitution that range from strict constructionist views to the interpretations of the living constitution, most controversial judgments that strike down a statute are labeled by the critics as judicial activism (Franck; Kmiec).

     Critics of judicial decisions abound, both in the government and outside of it.  Thus, Senators Orrin Hatch of Utah and Sam Brownback of Kansas, two Republican members of the Senate Judiciary Committee had claimed: “There’s an old saying in the legal community: ‘Bad facts make bad law.’  Activist judges continue to prove that bad judges make bad law” (Hatch & Brownback, 2005).  The Senators mention a decision made in 2005 to explain that extreme judicial activism is also possible, and can be quite harmful as well as ridiculous seeing as the judges of the nation are responsible for making mockery of law in such cases.  The Senators describe the case thus:

               The Justice Department had brought a 10-count indictment against a company called

          Extreme Associates, which produces films that, according to one report, “even porn

          veterans find disturbing.”  Extreme co-owner Janet Romano, whose “professional” name is

          Lizzy Borden, admitted in a May 2001 interview that women in their films, receive real

          physical beatings.  Her husband, Robert Zicari, boasted that the films — which depict

          rape, torture, and murder — represent “the depths of human depravity” and proudly

          admitted that the ones involved in the indictment meet the legal definition of obscenity.

               When the people at Extreme sent these films through the mail, they violated federal

          anti-obscenity statutes.  Yet what should have been a slam-dunk conviction turned into a

          ruling that these statutes are unconstitutional.  When a judge avoids ruling on what is in

          the Constitution by ruling on something that isn’t, however, you know something political

          is afoot.  U.S. District Judge Gary Lancaster of Western Pennsylvania, said that the

          indictment against Extreme violated not the First Amendment’s right to free speech, but an

          unwritten constitutional “right to sexual privacy, which encompasses a right to possess and

          view sexually explicit material in the privacy of one’s own home.”  He could only come to

          this bizarre conclusion by stitching together bits and pieces from inapplicable precedents

          (and making a few things up altogether) to form a Frankenstein’s monster of judicial

          activism. (Hatch & Brownback).

As far as activism in the above example is concerned, it may be that politics allows for obscenity when political leaders believe that pornography is actually good for economic growth because it sells.  Still, people with a moral code would like to believe that the constitution and all laws of the land are absolutely clear cut and therefore impossible to interpret differently.  Unfortunately, just as judicial activism may be based on economic interests, attitudinal preferences or prejudices may also take charge of the intellects of the judges as they make decisions.  Sometimes these decisions may concern the lives and deaths of citizens, as the following example reveals.

     There are approximately 40,000 new people affected by HIV every year in the United States.  In 1990, the U.S. Congress passed the Americans with Disabilities Act (ADA), providing legal protection for people with AIDS in the workplace.  With this statute in place, workers may feel confident that they would not face discrimination on the job after undergoing an HIV test.  Thus, every company in the nation must be complying with the ADA.  These requirements include the offering of reasonable accommodations to qualified workers with disabilities.  It is a violation of the ADA to inform co-workers that an individual is suffering from HIV/AIDS, or any other illness or disability for that matter.  Whoever violates this policy will be subject to disciplinary action, so therefore confidentiality must be protected at all costs.  Moreover, the ADA restricts medical testing and inquiries before an individual has been employed by a company.  Apart from prohibiting pre-employment medical inquiries, the ADA dictates that broad based medical inquiries after making conditional offers of employment will only be permitted to a company if such inquiries would include all people in a similar situation, that is, all the people who have been made conditional offers of employment to.  Medical inquiry is also allowed when the employer must grant the employee’s request for a reasonable accommodation under the ADA.  Furthermore, medical inquiries are permitted when job-related concerns over safety and health call for them (“Workplace Scenarios,” 2009).

     Several states of America, including California, Florida, Illinois, Massachusetts and Texas, are nowadays addressing the issue of mandatory versus voluntary HIV testing in the workplace.  Even so, the ADA covers every state, and must be strictly followed.  The EEOC, which enforces the ADA with respect to private employers, agrees.  However, one federal court of appeals held that “an individual may not have a cause of action for damages simply because the employer violates the ADA’s prohibitions against pre-employment medical testing and inquiries (without otherwise acting unlawfully based on that information).  See Armstrong v. Turner Industries, Inc. (5th Cir. 1998)” (“Workplace Scenarios”).  Evidently, the ADA has been ignored by courts many a times (“Workplace Scenarios”).  Obviously, this is wrong practice on the part of the courts that have ignored the ADA’s and EEOC’s restrictions.  A statute passed by the United States Congress definitely deserves more respect by courts of law.

     It can be inferred that these violations are concerned with prejudices or the negative attitudes of people towards those suffering from AIDS.  In order to save countless lives from the harm inflicted by violations of the law, it is necessary to educate those responsible for making decisions in courts of law.  After all, the courts should be the first ones to follow the law.  It is unfortunate that this is not happening.  It is hypocrisy to boot.  Moreover, organizations cannot be expected to stop discriminating against people with AIDS if the courts of law do not support the law called ADA.  If laws are not supported by courts, there would be no difference between the courts and those that engage in unlawful activities.

     Thus, judicial activism must be understood as violation of the law.  When it occurs, it is referred to as “bad law” seeing that the judges are themselves responsible for creating bad laws out of absolutely good ones (Hatch & Brownback).  The detailed case of AIDS in the workplace makes it abundantly clear that judicial activism may hurt the interests of society.  AIDS is a very sensitive issue among those that suffer from it.  The Supreme Court recognized the sensitivity of the issue when it included AIDS patients in the ADA.  All the same, courts of law violated the provisions of the law later on, as though the law had not been clearly established to begin with.

     Sowell writes that at the heart of the problem referred to as judicial activism is this very fear that a judge would impose his personal likes and dislikes in his decisions.  Furthermore, this imposition of personal preferences may be so drastic that it eventually negates “the very meaning of law as a body of known rules to guide individual and social conduct” (Sowell).  Although judicial activism is mostly debated with reference to decisions that require an interpretation of the Constitution, it is also prevalent in other areas of law, such as the ADA which was passed by the U.S. Congress (Sowell).

     Edward Whelan (2006), the president of the Ethics and Public Policy Center in the United States maintains that there are no reasonable grounds whatsoever for judicial activism.  According to him, the Supreme Court as well as the rest of the courts of law have “imposed the left’s agenda” over the past forty years or more (Whelan).  The imposition of the agenda has concerned a wide range of issues, from abortion to the death penalty, and from criminal rights to a secularized public square.  Critics of judicial activism have asserted that the erroneous rulings of the courts function to deprive the Americans of their essential political right to establish, through the elected representatives of the people, the policies that are meant to govern the entire nation, plus the states, and individual communities.  Thus, the term “judicial activism” translates into an “unconstitutional judicial usurpation of the democratic process” (Whelan).

     Whelen further explains that citizens have the right to demand that a judicial decision be corrected when in fact it has been established that a judge has overridden a legislative enactment.  In other words, people suffering from AIDS can fight for their rights when courts of law fail to acknowledge the law itself because prejudice is overruling.  Additionally, Whelen advises that citizens should not be expected to pretend that they do not know the correct procedure when a decision has been known to usurp the political process.  Rather, citizens should demand that such

a decision be overturned.  It is important for citizens to remember, however, that “plausible” interpretations of the law do not necessarily translate into correct ones (Whelen).

     Finally, the president of the Ethics and Public Policy Center reminds the reader of Abraham Lincoln’s words, “The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal” (Whelen).  After all, judges too are human, and if they are not corrected when they are wrong in their decisions, the legal system of America would be making a mockery of itself.  What is more, it is the citizens that would have to bear the consequences of injustices.

     Immanuel Kant would say that a decision on the part of American citizens to stop injustice in the form of judicial activism would be an act of good will.  Moral considerations guide behavior that becomes an act of good will.  Moreover, morally worthy decisions must be based on the idea that one must act in accordance with the maxim that he or she believes deserves to become universal law.  Practical reason is necessary in Kant’s ethical philosophy.  And, the categorical imperative is the basis of all moral duties.  The categorical imperative is a command to exercise the human will in a particular way.  It is not a choice to act in one way or another (“Kant’s Moral Philosophy”).  Hence, checking a wrong is a categorical imperative.  The individual who checks a wrong does not have a choice.  Rather, practical reason has led him or her to believe that if injustice is unchecked, society as a whole may have to face its dire consequences.

     Also according to Kant’s moral philosophy, the virtue of justice or imparting justice should be looked upon as a habit that has become necessary by repetition (Cox).  So, American citizens are expected to know that it is good to impart justice because they have seen the ill effects of injustice in the world.  Moreover, being guided by reason that judicial activism may concern the lives and deaths of citizens and should therefore be checked must be considered a morally sound argument.  The categorical imperative, in this case, is a command to impart justice by finishing off injustice.  It is not a choice to impart justice or not.  What is more, if the citizens of America do not wish for injustice to become universal law, and neither wish for injustice to go unchecked – they should be willing to make a supreme effort to end the curse of judicial activism.

     Aristotle agrees that justice is an ethical virtue.  Besides, the philosopher believes that one may only understand justice and other ethical virtues through reason and learning (“Aristotle’s Ethics”).  In other words, human beings know that justice is good because they have experienced the consequences of injustice.  Humans are also aware that by not putting an end to injustice they are perpetuating the crime.  It is understood, after all, that criminals whose behaviors go unchecked may turn out to perpetrate greater crimes in future.  Also according to Aristotle’s ethical philosophy, justice as a virtue is a component of happiness (“Aristotle’s Ethics”).  Therefore, if American citizens were to allow judicial activism to go unchecked it may lead them to unhappiness, seeing that decisions made by judges that are not impartial or just in their judgments may adversely affect their personal lives in the future.

     Thus, both Kant and Aristotle would argue in favor of ending the injustice of judicial activism.  In fact, Kant’s categorical imperative does not give American citizens a choice to oppose this injustice.  After all, citizens should not agree on the principles of bad governance as opposed to good governance one of the characteristics of which is the rule of law.  Lincoln would agree that American citizens should not be subjected to the injustice of judicial activism.  This form of injustice may adversely impact all areas of their lives on the whim of powerful judges.  For this reason, the rule of law must replace judicial activism and whenever the citizens of the United States see the injustice of judicial activism they should oppose it.

References

Aristotle’s Ethics. (2007, Jul 17). Stanford Encyclopedia of Philosophy. Retrieved Jan 29, 2009,

from http://plato.stanford.edu/entries/aristotle-ethics/.

Cox, H. L. Aristotle’s Ordinary versus Kant’s Revisionist Definition of Virtue as Habit. Moral

Psychology. Retrieved Jan 29, 2009, from http://www.bu.edu/wcp/Papers/MPsy/MPsyCox.htm.

Franck, M. J. (2006, Sep 13). Depends What the Meaning of “Judicial Activism” Is. National

Review Online. Retrieved Jan 29, 2009, from http://article.nationalreview.com/?q=NGRiYjk4Yzk5ZjA2YWNmNjgzZTAwMWZkZWM0NzY0MzU=.

Hatch, O., & Brownback, S. (2005, Feb 10). ‘Extreme’ Judicial Activism. The Washington

Times. Retrieved Jan 29, 2009, from

http://washingtontimes.com/news/2005/feb/09/20050209-082410-9837r/.

Kant’s Moral Philosophy. (2008, Apr 6). Stanford Encyclopedia of Philosophy. Retrieved Jan 29,

2009, from http://plato.stanford.edu/entries/kant-moral/

Kmiec, K. D. (2004, Oct). The Origin and Current Meanings of “Judicial Activism.” California

Law Review. Retrieved Jan 29, 2009, from http://www.constitution.org/lrev/kmiec/judicial_activism.htm.

Rule of Law. United Nations Development Programme. Retrieved Jan 29, 2009, from

http://www.pogar.org/governance/ruleoflaw.asp.

Sowell, T. (1989). Judicial Activism Reconsidered. Retrieved Jan 29, 2009, from

http://www.amatecon.com/etext/jar/jar.html.

What is Good Governance? (2009). United Nations Economics and Social Commission for Asia

and the Pacific. Retrieved Jan 29, 2009, from http://www.unescap.org/pdd/prs/ProjectActivities/Ongoing/gg/governance.asp.

Whelen, E. (2006, Dec 4). A View from the Bench: The unpersuasive case for judicial activism.

The Weekly Standard, Volume 012, Issue 12. Retrieved Jan 29, 2009, from http://www.weeklystandard.com/Content/Protected/Articles/000/000/013/003apwwh.asp.

Workplace Scenarios. (2009). Society for Human Resource Management. Retrieved Jan 29,

2009, from http://www.shrm.org/diversity/aidsguide/scenarios.asp.