Monday, June 14, 2010

Kagan Nomination--Questions for Her & Her Questioners ("Judicial Activism" & the Constitution)

Like the topic addressed in the immediately preceding post on New York Court Watcher (judicial experience), this one will be somewhat easy to deal with. (See Supreme Court: Kagan Nomination--the "No Judicial Experience" Bugaboo, June 2, 2010.)

The issue of "judicial activism" itself is NOT easy to deal with. THAT's what's easy.

Any suggestion to the contrary--i.e., that "judicial activism" is a simple issue--is nonsense. Any suggestion, intimation or outright insistence by Senators at the confirmation hearings or by commentators that judicial activism is inappropriate, illegitimate or even evil is based on ignorance, amnesia, crass political posturing or ideological blindness. "Judicial activism," like virtually anything else of consequence, is not a simple yes or no matter. THAT--not "judicial activism" itself--is easy.

To illustrate, let's consider the issue of judicial activism at work. And we won't put it to work in the context of some obscure, ambiguous, or technically complicated legal text. Let's see how it works in the context of some familiar, unequivocal, and clear (pellucidly so!) law. Let's take a well-known provision of the Constitution. Not something buried in one of the Articles. But something prominent and right up front.

The First Amendment, for example. Specifically, the guarantees of freedom of religion, free speech and free press. The language could not be more direct. "Congress shall make no law...prohibiting the free exercise thereof [i.e., "religion"--the term previously stated and being referred to]; or abridging the freedom of speech, or of the press."

Elena Kagan, President Obama's Supreme Court nominee, will surely be questioned about judicial activism. She'll be asked about (and no doubt warned against) making law rather than merely applying it, about loosely or expansively interpreting the law rather than strictly doing so, about injecting her own views into the law rather than reading it objectively, etc., etc.

She'll be asked in a variety of ways about whether she will be restrained as a Justice or be an "activist." Whether she will simply apply the law itself to the facts of the cases that come before her? Or whether she will apply her own sense of what's wise and foolish, what's just and unjust, what makes sense and what does not, what's true to the nation's ideals and what isn't, what's good for the Republic and what is not?

The Senators doing the asking should themselves be asked--or ask themselves--if they've really given much thought to those questions. If they've really considered the ramifications of those questions. If they really believe what they are suggesting about restraint versus activism. About simply and strictly applying the law (the apparently unvarnished good). Versus injecting a Justice's own view of what makes sense and what is just (the supposedly self-evidently bad).

So for Kagan and the Senators questioning her, let's put that to work on the very first Amendment to the Constitution. "No law prohibiting the free exercise of religion." "No law abridging the freedom of speech." "No law abridging the freedom of the press."

Simple. Clear. Direct. "No law." [You know, "What don't you understand about NO?"]

For Kagan and the Senators questioning her:
No law?
Not at all?
Does that make sense?
Is a Justice simply and strictly to apply the Constitutional command of "no law"? Or apply the Justice's common sense?

Some obvious (seeming to me) examples:
A law prohibiting human sacrifice, even if part of an ancient, sincere, religious ritual to appease a religion's God?
A law prohibiting falsely and loudly saying "bomb" at an airport?
A law prohibiting newspapers from publishing child pornography?

How should the First Amendment be interpreted?
So "no law" should really be interpreted and applied as no law?
Not even allowing those laws?

Maybe, just maybe, that would make no sense. Surely (you the reader, and Kagan and the Senators might say), we can't allow human sacrifices or shouting "bomb" or "child porn." So maybe, just maybe, we (you, Kagan, the Senators--and me) don't really want the Justices to apply the Constitution so strictly. Maybe we really prefer kind of, sort of strictly.

So, perhaps "no law" should be interpreted and applied as "usually no law, but sometimes a law is OK if it makes a lot of sense."

But maybe those examples were obvious. (That's exactly what I said they were.) And the point they make should be obvious too. "No law" should not be strictly interpreted or applied.

In fact, the Justices seem always to have applied their own judgment rather than a strict interpretation of the First Amendment's "no law" command when reviewing laws prohibiting or punishing religious exercise.

A few examples:
Polygamy (law upheld, religion lost [Reynolds v. U.S., 1878]).
Refusal to have children vaccinated against smallpox (law upheld, religion lost [Jacobson v. Mass., 1905]).
Children helping to distribute religious literature (law upheld, religion lost [Prince v. Mass., 1944]).
Wearing a yarmulke in the military (law upheld, religion lost [Goldman v. Weinberger, 1986]).
Religious ceremonial use of peyote (law upheld, religion lost [Oregon v. Smith, 1990]).

So, for Ms. Kagan and the Senators questioning her:
Should the Justices have strictly interpreted and applied "no law" in these cases?
Should the laws have lost and religion won in all those cases?
If in some of the cases but perhaps not all, then which cases and on what basis?
If not no law, then which laws?
The ones that the Justices think are necessary or for some other reason make a lot of sense?
The Justices' judgment?

Or should the Justices defer to the judgment of the lawmakers?
So maybe not exactly "no law" prohibiting the free exercise of religion. But those laws that the lawmakers think are necessary or make a lot of sense?

Well, let's take a look at some additional restrictions placed on religion that the Supreme Court has reviewed:
Forbidding door-to-door distribution of religious materials (law lost, religion won [Martin v. Struthers, 1943]).
Punishing religious refusal to salute the flag (law lost, religion won [West Virginia v. Barnette, 1943]).
Denying naturalization to religious pacifists (law lost, religion won [Girouard v. U.S., 1946]).
Denying unemployment benefits because of religious refusal to work on the Sabbath Day (law lost, religion won [Sherbert v. Verner, 1963]).
Requiring high school attendance despite well-established religious objection (law lost, religion won [Wisconsin v. Yoder, 1972]).

So, for Ms. Kagan and the Senators questioning her:
Were the Justices correct in all these cases because they strictly interpreted and applied the "no law" command of the First Amendment?
If so, then were the Justices wrong in all those cases previously identified where the Court upheld the laws against religion?
Or were the Justices wrong in all these cases just mentioned because the Court should defer to the judgment of the lawmakers?

In short, should the Justices strictly interpret and apply "no law," or should they defer to the lawmakers?

Or does it matter from case to case?

And if it matters from case to case, on what does it depend?
On how much sense the law makes? How necessary it is? How objectionable the religious practice is to society? How harmful it is to society? To the nation? How much the law infringes on freedom of religion? How central the practice is to the religion?

Should all of these factors be balanced by the Justices? Some of these? These and others?
And are the Justices to exercise good judgment when applying the factors or balancing them?
And whose good judgment should the Justices be exercising?
Presumably their own?

Oh, well. That certainly seems far far afield from strict interpretation, doesn't it?

And, in fact, is there any other reasonable way--i.e., possible and sane way--for the Justices to decide these cases than to exercise their own good judgment?

And, next, what about freedom of speech? I mean the word "speech" itself.
Maybe "no law" can't be strictly interpreted and applied. Maybe that's the exception that proves the rule.
But what about "speech?"

Yeah, that's easier. "Speech." Know what that means. That should be a better topic for the Senators to ask Kagan about judicial activism and strict interpretation, and to urge her to reject the former and abide by the latter.

Well, we shall take a look in the next post. [Hint: It's pretty easy to see that "speech" ain't so easy either.]