Normative Assumptions: The Judiciary and Ballot Initiatives

June 16, 2009

I am in the process of assessing, generally speaking, the normative values of the judiciary and, more specific, the normative values of the judiciary within the ballot initiative context. The following is a thumbnail of some of the thoughts that I am entertaining while undertaking research on this facet of my project. I hope that you find it intriguing. Below, you will find a normative undertaking of judicial activism and other norms that govern the judiciary. I attempt to disassemble some of them in the hope of obtaining a broader, more proper understanding of the judiciary. Ironically, I hope that you find it confusing so that it perplexes you as well. In confusion, I believe, there is progress that can be achieved by groups of people such as ourselves.

The public and government alike place a premium on justices following the letter of the law. Yet, despite when decisions have little, true legal foundation, the public and government do not criticize the judiciary at times even though they may be “activist”  in nature (activism is broadly understood as decision-making outside the letter of the law). Herein lies the difficulty: why are some decisions deemed activist and others not? More important, what forces or influences help shape the use of activism and, tangentially, are they proper within our current framework of government?

For instance, let’s consider the Second Amendment (the so called right to bear arms) with particular attention paid to individual rights. Prior to the District of Columbia case this last year, no singular U.S. Supreme Court case had set forth the language or implicitly demonstrated that there was an individual right to bear arms. It was, however, assumed that such a right existed. Now case law establishes that there is an intrinsic, implied right for individuals to bear arms. Does this constitute judicial activism? Broadly, judicial activism claims on some level that justices created law or went beyond what the law at the time held. Put another way, the justices found a way to legally claim that something exists beyond what law, at the time of the decision, establishes. In my opinion, this is judicial activism. Please note that I am trying to narrow the meaning of the word, judicial activism,because it is rife with ambiguity in definition, which, certainly, is perpetuated by application. At this time, as a native South Dakotan and gun owner myself, the culturally ingrained aspects of myself are screaming for me to assert that this is not activism; mainly, this reaction is generated because such action would comport with my beliefs, although not necessarily the facts. Therefore, judicial activism or the claim thereof in some way is linked to my political beliefs and behaviors.

This contradiction is further contextualized with the so called right to privacy, which also is not explicitly in the U.S. Constitution.  No court case, currently, points to the language of the U.S. Constitution to assert that there is a right to privacy; instead, this right is broadly asserted through court decisions. As a side note, I hesitate to use the word “right” because it is more proper to assume that the government assumes an obligation to observe some level of individual privacy, rather than a constitutional demand, strictly speaking, which is compelled when an individual right is at stake.

So why have I just put forth these examples when they, ultimately, have little connection to the ballot initiative context? There are multiple reasons for this; all of which, I hope to expose in this blog. Starting simply, in the aforementioned decisions there is an underlying norm or, rather, factor that appeases the public. This factor exerts such an influence that few in the public purport judicial activism; people become enveloped by this factor to the extent that they do not react until it contradicts personal beliefs that are, in some way, impacted by this factor. In part, it is my belief that this underlying factor is or is somehow linked to the political context–the multifarious aspects which help form the status quo– which governs the manner in which the public not only perceives, but also reacts to certain judicial decisions. Simply put, in each of the examples, the public does not disagree with the decisions of the Court or, at least, few do. This is because of the political context. The decisions, in large part, do not contradict or run contrary to political context and the beliefs held by citizens therein.

This discussion prompts the question of whether or not there is such a thing as judicial activism. Judicial activism exists by definition irrespective of its elasticity; however, judicial activism loses its importance for two reasons: judicial activism is used during partisan political battles, and judicial activism is necessitated for purposes of government satisfying public needs. Judicial activism, any more, merely is used by those who disagree with the decisions of particular courts. In particular, politically-charged issues tend to provoke the use of judicial activism (consider this in the context of California and the litigation surrounding Proposition Eight, gay marriage). Let’s consider the issue in a different manner. Jurisprudence calls upon justices to incorporate prior decisions and other factors to make decisions on the issues before them in particular cases. This incorporation alone, ignoring legal and political  justification, leads to the creation of law: it is new law, irrespective if it deviates from prior law or, ultimately, supports prior decisions. Judicial activism argues against judges making or creating law. Simply put, their decisions have the power of law until it is controverted by another branch of government, a higher court, or the people of a state or on a national level. Thus, the concept of judicial activism is flawed in that it assumes that there is some static quality to law, wherein law remains the same when judges follow its lettering. Yet, the political context demands that the law remain fluid, attempting to follow the changes of society, if not directly contribute to them (think of Brown v. Board of Education, which, certainly, constitutes judicial activism yet it added to society in an important way).

The concept of judicial activism and its use, importantly, fail within the context of government functions. Since roughly the 1920s, the United States government is increasingly burdened by increased demands and large expansions of the types of demands of its increasingly diversified population. I am not claiming that this is a bad thing. Rather, the increased and expanded demands placed upon government have called for a unified approach of the three branches of government to fulfill their obligations to the public; this is referred to as the shared powers model of governance. No longer can one branch alone bear the burdens placed upon it, especially to the extent that it still satisfies the polity. Broadly, the trend toward shared powers explains the expansion of the executive, judiciary, legislative branches as well as offshoots of those bodies such as the EPA (Environmental Protection Agency). Judicial activism, although conceptually devalued, is needed. Other branches of government have shifted power and obligations to the judiciary so that they all may work toward serving public interest. Judicial activism is, therefore, helps meet the demands placed upon government. No longer is merely defining the law enough; meeting the demands of the public as well as the individuals before the courts is a necessary part of the calculus and function of the courts.

In sum, judicial activism is shaped by the political context, the status quo. Multiple demands are placed upon government and the other branches, willingly, have deferred obligations and power to the courts to meet those demands.

The obvious next question then, of course, is whether or not, based on norms and demands on government, the court makes public policy and, further, whether or not they are supposed to. This is the subject of my next blog.

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