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The Fireworks of “Judicial Activism” and Social Change—Elena Kagan and the Thurgood Marshall Connection July 4, 2010

Posted by legalethicsemporium in Law, Ethics & Society.
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On July 4th “we the people” celebrate our independence–it is the anniversary of the Declaration of Independence in which Thomas Jefferson employed John Locke’s social contract theory to inform the British government that we  were going to “do our own thing.”  This year the holiday coincidentally, but appropriately, comes on the heels of the confirmation hearings for Supreme Court nominee Elena Kagan. 

Now let’s note that during the hearings the banter is focused on the Supreme Court and some of its Constitutional decisions.   The Constitution was not drafted and signed for another eleven years after we declared our independence. And  we know that the “guys” that adopted the Constitution did so intending  to protect “the guys”–that is white, property-owning males–slaves remained property and women became nonvoting citizens.

So, how did we (the people) become more than just “the guys?”  Well, some may call it social change and others may call it judicial activism.  In fact, just this past week  there were  U.S. Senators who expressed concern about  Elena Kagan’s fitness based upon the fact that she had clerked for that  “activist”  Justice Thurgood Marshall.  Now, it is true that Justice Marshall, who was the lawyer who argued Brown v. Board and the first African-American Supreme Court Justice, is considered a champion of civil rights.  Does that make him a judicial activist?

Well, to even analyze the question, you have to define the term which generally has a pejorative connotation and involves a case in which it is said that a judge involved his personal views in the decision-making.   But, what does it actually mean?  Interestingly, it is not a term of art from our Founding Fathers, but rather seems to have made its debut in 1947 when Arthur Schlesinger Jr. used it in an article that was published in the Atlantic Monthly. Since that time it has been applied to both conservative and liberal judges and never been succinctly defined. ( see “The Origin and Current Meanings of ‘Judicial Activism'” by Keenan D. Kmiec linked above.)

 Noah Feldman explains that the liberal justices that were appointed to the court by President Roosevelt began their tenure as proponents of judicial restraint which is what President Roosevelt required to succeed in passing the New Deal legislation.  Professor Feldman further reveals that:

“Then a funny thing happened. Little by little, the liberal majority began to realize that it had the capacity to protect minority rights and to expand individual freedom. Its members maintained the liberal constitutional orthodoxy that the court should not impose a single economic vision in the name of the Constitution. But when it came to equality and individual liberty, most of the liberal justices slowly moved away from judicial restraint, actively protecting religious and racial minorities and defending civil liberties.”

And so it goes…It is an extremely complicated topic about which there are many scholarly articles written, but there is one underlying compelling question here.  How does society evolve without a little activism propelling its population and the institutions of its government?  Is judicial activism always a bad thing?

Frank Rich eloquently recounts our civil rights evolution with July 4th of 1776, 1964, and 2010 as markers. He takes note of Strom Thurmond’s coining the phrase “judicial activist” to define Thurgood Marshall and notes that the Senators echoing Thurmond’s words this week  reflect that America is still “very much a work in progress.”  Progress requires action.  What is the difference between action and activism?  I guess it depends upon who is defining the terms.



1. Ruth - July 5, 2010

I couldn’t agree with you more. A work in progress is always to be more desired than the status quo. Elena Kagan, when she is confirmed will add greatly to our Supreme Court. May action and activism prevail!

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