Growth and development, in general, contribute to the diversification of society itself; this creates a dilemma for both political culture and legal theory alike. Specifically, each must meet the demands of an increasingly varied populace, yet the manner in which they do so becomes constrained by the multiple demands placed upon them. A gap results from the inability of law, legal theory, political institutions, and individual actors to meet the public’s needs. The result is that law and society lag behind society, unable to meet its multifaceted demands. Law and theory, thus, have to be overhauled or augmented in order to comport with society and its needs. In some cases, mechanisms outside of simple representative governance are invented to encourage growth and stability in society. The creation and adoption of the initiative process (also referred to as direct democracy) during the Progressive Era of American democracy exemplifies the need for the creation of a tool, outside typical governance, to benefit society and meet citizen desires.
The Progressive Era of American democracy was plagued by corruption. In the Progressive Era (roughly mid-1890s to 1917), political machines developed in response to the vacuum created by unmet, varied public desires. In large part, these machines aimed to meet their own desires while, minimally, fulfilling those of society in general. In many ways, the political machines perpetuated the cycle of citizen needs not being met by government. Not surprisingly, corruption or the perception thereof, especially in the form of quid pro quos (bargains), became rife across multiple levels of society—in particular, government. Progressive reformers, as a result, attempted to curb this corruption through a series of changes in law and political and legal theory to better society’s current and future state. As a result, a method was sought to redefine the boundaries and theories of law itself to be consistent with the desires of the public.
Progressive Era reforms emerge as an attempt not only to quell political corruption, but also to simultaneously restore the public’s confidence in government; it should be noted that public confidence is vital to the U.S.’s form of governance, republican democracy. Collectively, the Progressive Era reforms that are pertinent to the issues at hand—corruption and ineffective governance— are referred to as the initiative process. The advent of the initiative process establishes the foundation of the manner in which reformists hoped to reconcile public confidence and political corruption, all the while, reinvigorating government. The initiative process, loosely understood, is a series of tools for the citizenry to effectuate and realize their desires. Specifically, these tools are the initiative, referenda, and recall. The initiative and referenda, although different in the manner in which they arrive on a public ballot, are single-issues that are subject to a vote by the public. The recall is subjecting either an already completed election or a vote taken in the legislature or elsewhere back to electorate—the equivalent of a voting mulligan. It also remedies past actions taken by the legislature with which the public disagrees. In short, the initiative process allows citizens to create law to meet their desires and remove unwanted or undesirable laws, actions, or elected officials. As a result of the initiative process, citizens themselves have the ability to begin this process with little intrusion by the government. An underlying goal of the reform movement is that the citizenry’s psyche is meant to be affected such that they are empowered which, hopefully, increases their participation of government. The ballot initiative process signals a significant change: citizens now can seek changes in the status quo, irrespective of non-responsive or ineffective representation, to realize their needs.

As contributions to candidates begin to wane under the pressure of court opinions, political actors reassert themselves in newfound ways to ensure the fulfillment of their political desires to the detriment of ordinary citizens; the last 30 years of American political history corroborates this.  After reviewing the last three decades, scholars contend that [w]ell-funded interests can influence the recruitment and selection of candidates; they can manipulate the salience of issues that will dominate the public agenda; and they can shape other conditions of political engagement in a way that less wealthy people cannot” (Garrett, 2002, 6). A California study showed that sixty-eight percent of all initiative campaign contributions come from lobbying interests (Du Vivier, 2007, 1048). Furthermore, spending on initiatives in California alone has spiked from “$25 million in 1982 to around $390 million in 2005” (Dempsey, 2007, 126).  Although there is not a guarantee that money increases the likelihood of success for a particular initiative, it does play an important role “in exposure and how the public perceives an issue” (Du Vivier, 2007, 1048, 1049). Considering that political elites and veiled political actors deceptively fulfill their interests without the public knowing, the power of money allows them to shape the perceptions of an uninformed public. The U.S. Supreme Court’s rulings, limiting disclosure and transparency, have provided a fertile ground for corruption to exist with deft political actors exacting their interests unbeknownst to the general public.

Even more troubling is that elected officials are inextricably bound to the initiative process. In fact, their political future depends upon it: “Now, elected officials face strong incentives to treat ballot measure contributions with almost the same importance as reelection contributions, in part because the candidate’s popularity, agenda, and political power can be heavily influenced by how those contributions are spent and which initiatives pass or fail” (Dempsey, 2007, 124).   To contextualize this, consider the extensive use of the initiative process by Governor Schwarzenegger to advance not only his own agenda, but also his political financiers. The damage is that a hopefully corruption-free tool for the citizenry to use to achieve their desires becomes infused with special interests and politicians alike; this is precisely what the Progressive era reformers sought to avoid. Schwarzenegger has been able to amass large contributions for his platforms because of the lack of campaign ballot issue contribution limits or other forms of government regulation (Dempsey, 2007, 125). As a result, candidate-controlled campaign ballot measure committees now “serve as major conduits…to put huge contributions into the hands of elected officials for use in promoting political agendas” (Dempsey, 2007, 126). California law limits donor contributions to $22,300 for governor’s election bid (Dempsey, 2007, 125). On the other hand, donor contributions are not limited with respect to the initiative process (Dempsey, 2007, 125). The result is that “a few hundred major corporate donors and wealthy individuals” gave Governor Schwarzenegger “an extra $26 million for his agenda that would have otherwise been barred” if donated for his election (Dempsey, 2007, 148). Thus, the reality is that the Governor utilizes the process to advance his own agenda, free from government regulation in many ways. Now, roughly three-quarters of Californian voters call for change in the initiative process; it is a function of big interests, leaving ordinary citizens in the fray (Dempsey, 2007, 125). It is disconcerting that candidates like Schwarzenegger no longer seek political contributions to his campaign but the initiatives upon which he is running.

In some respects, the initiative process allows a politician a second bite at the apple when they have lost in other mediums. It is quite clear that initiative process is now attractive to politicians because it provides them access to unlimited, monetary contributions. It is further unsurprising then as politicians continue to use the initiative process that citizens become alienated in the process.

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.