Why is Stephen Breyer an activist judge when he votes to uphold Roe v. Wade, while Clarence Thomas is not one when he thinks it’s the Supreme Court’s role to stop the Florida recount on equal protection grounds?
- Dan Mullkoff
In 1949, Arthur Schlesinger Jr. divided the U.S. Supreme Court into “judicial activists” (liberals who would have their own way, whatever the intent of Congress or the U.S. Constitution) and the more sober folk who were willing to accept the dictates of the lawmakers, no matter how much those dictates might clash with their more ‘liberal’ views and desires.”
At that point in time, the terms liberal and activist went hand in hand, reflecting ideologies of reform and changing the status quo. History Prof. Matt Lassiter explained to me that by the time Lyndon Johnson took office in 1963, the center of U.S. politics had shifted to the left, and many on the right had come to believe that more active behavior was needed to achieve the norm that they wanted. This shift was viewed by many at the time as reactionary, but Young Americans for Freedom and other conservative groups eventually adopted the term activist to describe themselves.
Still, Lassiter says, many right-wing groups, such as Campus Crusade for Christ, didn’t see themselves as activists per se, and the right-wing movements of the ’60s were portrayed as extreme, backlashes against the left-wing movements that graced the decade. In the public’s perception, the stereotypical activist remained a leftist hippie, burning flags and demonstrating in the street. Even today, the public perception of an activist remains focused on the left. Metro-Detroit resident Mikey Barringer, in an interview from Germany, said, “For right-wing activists, you have to put in the ‘right-wing’ part as an exception to the rule, like ‘male nurse’ or ‘female hockey goalie.’”
The debate over judicial activism is based on a concern that judges will not interpret the laws and the Constitution in an unbiased manner. LSA junior and self-proclaimed conservative James Dickson framed the debate: “If one would call, say, Brown v. Board a case of judicial activism, then I’m all for it. If it takes an activist judge to do what the political process refuses to, then so be it. I think that the problem most conservatives have with an activist approach is that activism seems to permit judges to decide what should happen — which group of actors or interests should win or lose — based on his opinion rather than the laws as conceived and written.”
It may indeed be valid that left-wing judges have traditionally played a more active role in interpreting the Constitution than right-wing judges. But at this point, with judges on both sides gerrymandering the Constitution and existing jurisprudence to fit their political goals, the right wing has maintained a monopoly on using the activist judge epithet against those on the left. The historical connotations of activist as a term to describe the left seem to have retained influence even though the reality has changed. Even though many extreme right-wing groups such as YAF today proudly call themselves activists, and many right-wing judges interpret the Constitution loosely, the left-specific meaning from the ‘60s has largely prevailed in the public perception, and the debate over judicial activism remains virtually one-sided.
John Kerry was accused during the campaign of wanting to appoint activist judges, but that charge paled in comparison to another accusation he faced: that he was a (whispering) liberal. Not only did Kerry avoid the word in his campaign this year (following the lead of every Democratic nominee since Walter Mondale), but President Bush brought up a 1991 comment by Kerry — “I’m a liberal and proud of it” — as evidence of his out-of-the-mainstream views. Bush also repeatedly pointed to National Journal’s ranking of Kerry as “the most liberal senator” in an effort to discredit him.
According to Lassiter, Republicans in the ‘80s successfully defined the word liberal as being pro-welfare and pro-crime. They used the word pejoratively to discredit Mondale and Michael Dukakis in 1984 and 1988, respectively. With their term of self-identification transformed by opponents into the L-word (1) or a 4-letter word(2) , activists on the left have looked to progressive to replace liberal as their identifier of choice. Progressivism as a political philosophy dates back to the late 19th century and reformers like Teddy Roosevelt and Jane Addams. In 1948, future activist U.S. Chief Justice Earl Warren wrote that the term progressive “represents true liberalism.”
Though Bill Clinton embraced the word progressive during his 1992 campaign, many today view it as indicating a farther left ideology than that of centrist Democrats. RC junior Ryan Bates says progressive has a “post-Clintonian air about it,” and Music School junior Ashwini Hardikar says, “I think the main difference is that the word progressive indicates a commitment to policies and attitudes in the interest of advancing social justice.”
It seems liberal is dying a slow death, with attacks from the right for being too far left and attacks from the left for being too far right. Perhaps the term progressive will again prevail, a century after its original heyday. Or perhaps those on the left should adopt a strategy of music and art critics and deliver the coup de gr