But, again, how do you give [the states' political] processes time to work when the courts insist on rushing in? Is it necessary to construct some kind of constitutional “stopper,” like a milder form of the amendment that was defeated today? But then how to craft this stopper so that it doesn’t freeze into place what ultimately becomes a disregarded moral position, like that embodied in miscegenation laws?
"The Marriage Amendment" (14 Jul 04) (emphasis added).
As I noted, this is mild rhetoric compared to most; and perhaps my objection is unfair to the rest of Professor Ribstein's position, which is well-reasoned even if I don't quite agree with the conclusion; but this particular rhetoric, and especially more-extreme versions that refer only to "judicial activism," I think misapprehends the nature of judicial review—particularly under our system. The "more extreme" rhetoric to which I am referring is, of course, the rhetoric of "judicial activism." The problem with the assumption is a simple one: How do courts "insist on rushing in"? Do the courts determine what matters are before them? Not in this country. Under our Constitution, and the parallel provisions in our states' constitutions, American courts can deal only with "cases and controversies." That language has come to mean that there must be
- a live dispute
- between parties with interests in the outcome
- for which the court can provide a meaningful remedy
In short, the courts don't "rush in"; at most, they are asked to resolve disputes by persons aggrieved by the results of the political process, however indirectly. (For the moment, I'm ignoring "police power" and criminal law issues.)
What this implies in the end is dissatisfaction with what is perceived to be a nonresponsive elective branch. Some of the "nonresponsiveness" is both real and justified; as my rant of yesterday indicates, I think it proper that there has been no massive "tort reform" in the absence of validated data supporting both a need for reform and the proposed solution. That's far from the only instance. However, some of the "nonresponsiveness" is real and unjustified. A current example is the gridlock over nominations to the Fourth and Sixth Circuit Courts of Appeal, which are being held up by senators who object to losing "their" state's "seats" on those courts—which is particularly ironic given that the judiciary, of all parts of our government, is the least geographically bound.
More to the point, though, look at the Copyright Act of 1976. It replaced a statute from 1909 that was at least in part obsolete on the date it was passed; and the 1976 Act was the product of nearly two decades of hearings. No, Congress didn't go into constant deliberations during this period, with copyright issues in weekly speeches and so on. Instead, the deliberative/committee [non]process went through draft after draft after draft of the legislation, "assisted" largely by parties who had both substantial interests in the subject matter and substantial resources to devote to asserting those interests. In the meantime, the courts were forced to deal with the burgeoning revolution in television; in multiformat and home audio recording; in xerography; and many others for which there was essentially no guidance in the 1909 Act. The lack of guidance, however, did not make the disputes before the courts invalid, or outside the duty of the courts to resolve them. Those resolutions necessarily created law, often with effects as far-reaching as anything in the 1909 Act (see, e.g., Fortnightly).
At least some—I would argue virtually all, but this depends as much on one's definitions as anything else—judicial activism results from legislative (and, since Schechter Poultry, executive) paralysis. In turn, some "activism" is inevitable; legislatures are particularly ill-suited to retail resolution of individual disputes, and sometimes those individual disputes necessarily implicate general rules (e.g., the Pentagon Papers cases). In other words, we get "judicial activism" when the political process has failed. This counsels against blaming the judiciary for doing what it must do, or at least what it is asked to do; had the legislature and executive been doing their duties in a satisfactory fashion, many of these disputes might have been avoided or otherwise resolved. Might; because the "losers" in the political process, so long as "political" encompasses more than mere partisanship, will continue to use the judicial process to attempt to advance/protect their interests. That, however, definitely is within the role of the courts, which includes protection of minority interests against the tyranny of the majority.
In the end, law is merely politics continued by other means. When the elected branches can't, or don't act, though, that does not mean the politics will stop; instead, the parties inject those disputes into the courts. The courts don't "rush in" as much as they are pushed; and conscientious jurists are loathe to evade their explicitly defined duties to decide absent compelling—not just prudential or polite—justification. This demonstrates the tension among representative government, checks and balances, the preferences of private parties and interest groups, and the concept that less government is often better inherent in our system. Unfortunately, "less government" is not always possible, particularly as the rate of technical and social change continues to accelerate; so somebody is going to do it. Frankly, I'd rather have the courts do it than have company towns do it (see Marsh v. Alabama). They're going to make mistakes; but at least the mistakes will be visible.