Saturday, December 14, 2013

Judicial activism and gay sex

(Supreme Court of India, from

Politics and government are, for the most part, not that weird. Maddening maybe, scary arguably, but most people are used to people making rules and arguing, which is what the President and Congress mainly seem to be for.

But there are weird parts of government, too... the vast array of bureaucratic agencies, for example. This is where vaguely-written laws are turned into specifically-written regulations so they can be put into effect. Yet start talking about the bureaucracy, and most people, including I'm ashamed to say me, drop into the blissful oblivion of deep sleep. The public comment period required for regulations is ignored by most of the public, except for the affected interest groups who raise a big stink and try to get them watered down or eliminated (see Dodd-Frank on financial regulation). The rest of us only notice the bureaucracy when something misfires, such as the first two months of

Even weirder, by my estimation, is the judicial branch. It was created, sort of, by the Framers of the Constitution. They spent very little time on it at the Convention, and very little language on it in Article III of the Constitution, which only creates the Supreme Court. The rest of the details they left up to Congress. It wasn't until 1803 when the Supreme Court itself decided its job description was to review the constitutionality of actions by the other parts of government, and to declare those actions void if they violated the Constitution. (The case was Marbury v. Madison, and the process is called "judicial review.")

Despite fulminations by President Thomas Jefferson, among others, the Supreme Court's power of judicial review came to be widely accepted, and has been adopted to some degree by other democracies. The practice of judicial review, on the other hand, remains controversial. Very few parts of the Constitution are self-defining, and less so as word usage changes over time. For example, what is an "establishment of religion," which the First Amendment prohibits? And did the widespread practice of Christian prayer and Bible reading in public schools constitute such an establishment? The Supreme Court said it did, in a series of decisions beginning with Engel v. Vitale in 1962, but it requires acceptance of a string of premises to get to that conclusion.

Those who feel the Court should refrain from complex paths to arguable conclusions, and defer to the elected branches except in egregious cases, advocate what's called judicial restraint. This approach was probably best expressed by Justice Oliver Wendell Holmes Jr. (served 1902-1932) who said "If my fellow citizens want to go to hell, I will help them. It's my job," because there's nothing in the Constitution that specifically forbids going to hell. On the opposite side of the argument were those who argued the Court, because it was not a majoritarian institution like the Presidency or Congress, should use its authority broadly to defend the rights of minorities (judicial activism). David Bazelon, a federal appellate judge from 1962-1978, said his standard was "Does it make you sick?" implying that if anything that came before him made him sick, he'd find a way to declare it unconstitutional.

Judicial activism is often associated with liberal causes, thanks in large part to a run of decisions in the 1960s and 1970s that struck down the custom of religious observances in public schools, expanded the rights of criminal defendants, and articulated a "right to privacy" that led circuitously to the famous 1973 decision that struck down state laws making abortion a crime. But judicial activism also has been used by the right, not only to strike down a number of New Deal programs in the 1930s, but in an earlier, appalling set of "freedom of contract" decisions that struck down a number of commercial regulations including child labor laws. More recently, conservative judges have articulated new doctrines on gun ownership rights (2008) and campaign finance regulation (2010) that reversed decades of federal and state laws.

The danger of judicial restraint is that it is too minimal, that it reduces the Constitution to use only in a few specifically-defined cases, such as the unlikely event that someone will pass an ex post facto law or a bill of attainder. The danger of judicial activism is that it turns the Constitution into the tool of whoever appointed the judges, with liberal judges using it to achieve liberal policy ends and to thwart conservative policies, and conservative judges doing the opposite. Too much of either threatens the Court's legitimacy and authority.

This controversy has been around awhile, as you can see. In October 1991, as the Senate debated President George H.W. Bush's nomination of Clarence Thomas to the Supreme Court, my college hosted P.N. Bhagwati, formerly the chief justice of the Supreme Court of India. (Justice Bhagwati, pictured at left in 2011 [swiped from], was personally acquainted with Dr. Ramakrishna Vaitheswaran, an economics professor at Coe.) Bhagwati related several instances of how "creative and imaginative judicial interpretation" of the Indian constitution had expanded human rights in that country. Later I asked him what would prevent later creative and imaginative judges from undoing human rights jurisprudence. He said nothing would, which is why the appointment process needs to take into account a person's judicial philosophy.
I recalled Bhagwati's talk this week as the Indian Supreme Court reversed a lower court decision from 2009 that had struck down the criminal law against homosexuality [See, for example, Gardiner Harris, "India's Supreme Court Restores an 1861 Law Banning Gay Sex," New York Times, 11 December 2013, The article also lists some recent, remarkable instances of Indian judicial activism]. The government, controlled by the BJP, is clearly hostile to gay rights, and Indian public opinion isn't particularly supportive. The lower court decision was activist, the Supreme Court decision restrained. India is not the United States, and the time may not be ripe for such a decision. Heck, it might not be ripe in America, either. But where minorities lack political power and public support, how else do their rights get protected?

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