As we’ve just heard that Judge Sonia Sotomayor has been appointed to the Supreme Court, I am reminded of just how important the “counter-majoritarian branch” really is. With the looming Prop 8 decision expected in just a few hours at 10AM, it can never be said that policy does not emerge from the judiciary. Not matter how the court decides on Prop 8, the California Supreme Court is clearly making policy when it determines whether I am married or not. There is no such thing as merely being an arbitrator, there are always shades of gray, and the requirement for a judge to apply their judgment. After all, it is nearly impossible for one to stand in judgment without, um, judgment.
These things matter. A lot. With respect to Sotomayor, it is already being argued that because she acknowledges that judges make policy, she should be rejected.
Conservative groups reacted with sharp criticism on Tuesday morning. “Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is ]) more important than the law as written,” said Wendy E. Long, counsel to the Judicial Confirmation Network. “She thinks that judges should dictate policy, and that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.” (NYT Caucus Blog 5/46/09)
The fact is that all signs point to Sotomayor being a centrist. Her opinions are a mish-mash of centrism. She notably ruled in favor of affirmative action, but has also repeatedly ruled against increasing civil liberties for prisoners. Unlike some of the other names discussed for the job, she is hardly a noted progressive like many of us would have preferred.
But here in California, policy is made all of the time in the courts, primarily because our elected leaders have been hamstrung by a disastrous structure of government but also by years of failed leadership on issues like the prison system. Years of the failed ToughOnCrimeTM policy and the unwillingness to put policy over politics left us with an absolute mess. Judge Thelton Henderson, a prominent NorCal district court judge, has consistently made more policy for our state prison system than the elected leaders.
The prison receiver has been quietly building a stable system of health care within the state penal system. When the system finally leaves receivership, it is preparing to become a full fledged-state agency, the California Prison Health Care Services (CPHCS). You can check out more info on the receivership at their website; they even have a spiffy (1995-era PDF) newsletter. This is just one case of the judiciary being far more responsible, and facing the policy challenges.
The courts are there to protect those who need protection. The courts are there to block the tyranny of the majority. Hopefully we’ll see that today.
is a term that we’ve let the GOP own and use against us. Scalia is just as much of a judicial activist as Brennan. Scalia just uses his activism in a way that promotes corporatist “values,” so they call it originalism.
If Prop 8 is overturned today, you’re going to hear the right wing’s apoplectic screams of “judicial activism.” But if the Court used the same reasoning to overturn a proposition that, say, outlawed the death penalty, the right wing would calmly argue that the originalist Court was strictly applying our Constitution’s time-honored distinction between a revision and an amendment.
Activism is always in the eye of the beholder.