Judicial Activism and the Brown v. Plata Decision of May 23, 2011

by Diane Rufino, June 14, 2011


How do you know ‘judicial activism’ when you see it? Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”

Beginning at the turn of the 20th century, activist judicial decisions initiated the start of a major transformation in American law. Prior to that time, there had certainly been many incidences of judicial overreaching, but these were generally rationalized as somehow representing the original intent of the drafters of the Constitution. But in the 20th century, and probably beginning most especially with Brown v. Board of Education (the school desegregation case), we had era of “activist” jurisprudence where the Court interpreted laws and the Constitution not according to established principles of construction, but according to the social agenda the justices wished to promote.

As we all know, there are two schools of thought with respect to the interpretation of our US Constitution. One school believes in the “original intent” of the document, as provided to us by our Founding Fathers, and therefore are referred to as “originalists.” In fact, our Founders provided clear instruction that the Constitution was to be construed strictly and in accordance to their intent. Others see the Constitution as a “living document” which is open to broad interpretation and are referred to as “liberals.” Under the “originalist” approach, the Constitution is viewed as a “static” document – one that doesn’t change meaning from era to era. What the document meant in 1787 is the same as what it means today. Judges are expected to stick to what the Founding Fathers intended. The Constitution’s principles are timeless, for as they are meant to address lessons that that hundreds/thousands of years of history have taught. “Originalists” see the Constitution in terms of black and white and its provisions are to be interpreted “literally.”

On the other hand, those who see the Constitution as a “living document” believe that judges can interpret it as they wish. They believe the Constitution is meant to ‘live’ and ‘breath.’ It is meant to evolve, as society evolves. In their opinion, it is essentially an outdated document that must be interpreted “liberally.” Liberal judges see the Constitution in shades of gray.

Conservatives are “originalists” because they want to ‘conserve’ our core values. Liberals or progressives take the “living document” approach because they can’t effect societal change unless they erase or erode old norms. They can’t make fundamental new law unless they destroy the old law.

Which is the correct approach? If you believe our Founding Fathers, then you would follow their advice and take the “originalist” approach and look at the Constitution as a static document with a clear definition and purpose. And why wouldn’t you believe our Founding Fathers? After all, they provided us all with the greatest grant of individual liberty with respect to government anywhere in the world. If you don’t value freedom and liberty and feel government knows best, than you might follow the “living document” approach and take your chances with whatever viewpoint the particular judge has at any given moment.

But you might want to reflect on this: The whole purpose of any constitution, and especially the Constitution of the United States, is to remove as best as possible and as much as possible the interpretation and application of the law from political controversy. With a constitution, the purpose is to set up basic principles that are going to apply and then the legislature and the courts are supposed to abide by them faithfully. The US Constitution has a method for dealing with political questions. It’s called the “Amendment process.” Article V. If it turns out that there are provisions of the Constitution that don’t adequately address issues and problems that we encounter today, then we go into that process. It requires a supermajority – 2/3 of both houses of Congress and then ratification by 3/4 of state legislatures. But that’s designed to make the process of changing the Constitution really responsive to the desires of the population. Changes to the Constitution should not be made lightly. We really want to know what the whole country in essence believes should be done and not just what a simple majority of one legislature should be done.

There are several examples of support for the “orginalist” approach to constitutional interpretation. First there is Contract law. The Constitution is essentially an agreement, signed by the States, on behalf of We the People. What it meant in 1787 is what it means today. Can you imagine a reasonable person entering into an agreement of significant consequence w/o knowing how that document/agreement will be changed or interpreted in the future? No party would enter into such an agreement – especially with such enormous consequences as the States did in 1787. Second, there is the “Article V: Amendment Process.” The very fact that the Constitution has a provision for amending itself tells us that’s the way it’s supposed to be done. And third, there is the advice itself from our Founding Fathers. As Thomas Jefferson said: “On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text or invented against it, conform to the probable one which was passed.”

Judicial activism is what results from a “liberal” interpretation of the Constitution and our laws. Essentially, judges “make law” by injecting their personal views into legal interpretation and analysis. This is dangerous because under the separation of powers doctrine, a doctrine so vitally important in maintaining the integrity of our government, only the legislative branch is supposed to “make” laws. The landmark case, Marbury v. Madison (1803) stands for the rule that the judiciary is supposed to faithfully interpret the law and to declare any law which is repugnant to the Constitution null and void.

We saw judicial activism in Brown v. Board of Education, in 1953, when the Supreme Court identified a new standard for education – classes must be integrated. The “Separate but Equal” doctrine that the Court had previously held as sufficient under the Equal Protection Clause was thrown out for education because Chief Justice Earl Warren felt it didn’t sufficiently apply. He felt that segregation by race inferred a sense of inferiority on black students which would affect their education. The decision was more about social reform than it was about following the letter of the law.

A look at a few landmark (activist) cases might help show how activism has redefined our Constitution and reshaped our social landscape.
Brown v. Board of Education (1953):  http://forloveofgodandcountry.wordpress.com/