Obama Must Expose Judicial Activism of Right Wing and Nominate Justice with Abundance of Empathy for the Rights of the Individual and Protection of the Social Good

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


The recent retirement of Associate Justice John Paul Stevens has created the second opportunity for President Barak Obama to appoint a justice to the U.S. Supreme Court. The appointment of Supreme Court justices have always been roiled in political posturing by both Democrats and Republicans in Congress. In point of fact, Republicans have already laid out the gauntlet, warning the president that they are prepared fight the nomination of a “judicial activist.”


Conservative Republicans, of course, will be buoyed by the support of media jocks like Rush Limbaugh and Glenn Beck. In a recent Newsweek article (April 13, 2010), Andrew Romano described Beck’s perpetual “paranoid” ranting about President Obama’s political agenda: “Last week Beck focused on two [Obama] conspiracy theories in particular. The first one was about how Obama can’t be ‘anything but a Marist,’ given that he’s spent his entire life surrounded by Marxists—his mother, his father, his grandparents, his neighbor (Frank Marshall), his pastor, his new spiritual adviser (Jim Wallis). The second was about how the ongoing boycotts of Beck’s show by various Democratic groups—labor unions, progressive evangelicals, Color of Change—are actually evidence of an unprecedented campaign by the ‘president and [his] administration to destroy the livelihood of a private citizen with whom they disagree.’”


The political hot-button term “judicial activism” has more often been used by republicans to demonize “liberal” judges who are often accused of inserting their social philosophy into their judicial decision-making. University of Chicago law professor and editor of the Supreme Court Law Review Geoffrey R. Stone in a recent The New York Times Op-Ed piece spoke of this phenomenon: “Liberals [Supreme Court] judges … have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority.”  In other words, individual rights and protections the Bill of Rights was intended to address.


Professor Stone listed several of these historical liberal Supreme Court decisions: ending racial segregation, 1/ establishing the “one person, one vote” principle, 2/ prohibiting the censorship of the Pentagon Papers, and extending the right of due process of law to Guantanamo Bay detainees. 3/ Political conservatives point to these kinds of decisions by liberal Supreme Court justices as overriding legislative mandates because of their “empathy” for certain social views. As Professor Stone pointed out, President Obama was criticized by conservatives shortly before he appointed Justice Sonia Sotomayor to the court because he simply observed that a “sense of empathy” could contribute to judges fulfilling their responsibilities.


With the proliferation of the Tea Party Movement, with all its underpinnings of racism, and other similar movements like “take back our country” led by paranoid conspiracy theorists Beck and conservative historian W. Cleon Skousen, the scrutiny given to the president’s second Supreme Court nominee will go far beyond the traditional “judicial activism” charges. The nominee will have to survive the “socialist/Marist” litmus test to garner the approval of the tea baggers and paranoid conspiracy theorists.


We suspect this test will require a denunciation of a number of landmark Supreme Court decisions listed by Professor Stone which eliminated horrific social practices that had been endorsed by state and federal legislative branches of government: laws prohibiting interracial marriage, 4/ rules that permitted the benefits of welfare recipients to be terminated without a hearing, 5/ laws that forced people accused of crime (mostly blacks) to undergo sterilization, 6/ laws that restricted the rights of political dissenters 7/ and members of minority religious faiths, 8/ laws that denied indigent defendants the right to counsel, 9/ and laws that denied equal rights to women. 10/


Professor Stone correctly noted that conservative commentators, like Beck and Limbaugh, have snowed many in this nation on the foolish notion that conservative Supreme Court justices apply the law under the “original meaning” of the framers as is so often reiterated by Justice Antonin Scalia. Professor Stone said these descriptions—what Scalia calls “originalists”—is “wholly disingenuous.”


“To see why this is so,” Professor Stone wrote, “we need only look to the text of the Constitution. It defines our most fundamental rights and protections in open-ended terms: ‘freedom of speech,’ for example, and ‘equal protection of the laws,’ ‘due process of law,’ ‘unreasonable searches and seizures,’ ‘free exercise’ of religion and ‘cruel and unusual punishment.’ These terms are not self-defining: they did not have clear meaning even to the people who drafted them. The framers fully understood that they were leaving it to future generations to use their intelligence, judgment and experience to give concrete meaning to the expressed aspirations.”


The framers were the intellectual elite of colonial times. They knew they were laying the foundation of a form of government that would take hundreds of years to evolve. They certainly did not intend, as Justice Scalia suggests, that their undefined constitutional concepts in 1789 should rule the nation’s way of life 250 years into the future. All they could do was lay the foundation for the nation to build upon. The evolving society would be ultimately erected would be shaped by the interests, needs, and demands of each passing generation. For example, even before the outside structure of this society had actually begun, it was torn asunder by a horrific civil war completely changed the social direction of the nation.


Unquestionably, the “judicial activism” of the Supreme Court has contributed significantly to the state and nature of our society today—some of it good, some bad. But one thing is indisputably clear: conservative justices on the court have engaged in as much judicial activism (personal and social philosophy guiding judicial decision-making) as liberal justices. As Professor Stone pointed out, Justice Scalia and his conservative breathen over “the past decade [made] it perfectly clear that they do not ‘apply the law’ in a neutral and detached manner.”

Professor Stone then listed a litany of decisions embraced by political conservatives which most certainly amount of “judicial activism” holding that corporations have the same right of free speech as individuals, 11/ extraordinary protection under the First Amendment for commercial advertising, 12/ gun control regulations violate the Second Amendment, 13/ declaring affirmative action unconstitutional, 14/, George W. Bush’s right to be president protected under the equal protection clause, and the Boys Scouts had a First Amendment right to exclude homosexuals. 15/


None of these issues had ever remotely entered the thought processes of the framers when they drafted the Constitution—not even the issue of “gun control,” a concept that did not even exist in their time. Absent the “original” thought processes of the framers on these controversial social issues, it is reasonable to conclude that the ultimate politically conservative outcome of the decisions was more influenced by the justices’ personal and social views than any “original” application of the law. The fact that these decisions are devoid of empathy does not signal support from the minds of the framers. To the contrary, the framers were blessed with an abundance of empathy not just for the rights of the individual but for the protection of the social good as well. The framers had just freed themselves from the bonds of tyranny. The simple truth is that they were a group of progressive, liberal thinkers who wanted to protect the individual not in only the uncertain times in which they lived, but also in the future, from the harsh reign of an elite ruling class and the oppressive politically charged will of the majority.

It is against this historical backdrop that we encourage President Obama to expose the hypocrisy of the right wing and nominate an individual to replace Justice Stevens who has the same progressive, liberal mindset of the framers of the Constitution.


1/ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=347&invol=483
2/ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=347&invol=483
3/ http://www4.law.cornell.edu/supct/html/05-184.ZO.html
4/ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=388&invol=1
5/ http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=397&invol=254
6/ http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=316&page=541
7/ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=11
8/ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=374&invol=398
9/ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=372&invol=335
10/ http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=411&invol=677
11/ http://www.supremecourt.gov/opinions/09pdf/08-205.pdf
12/ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=00-596
13/ http://www.law.cornell.edu/supct/html/07-290.ZO.html
14/ http://www.law.cornell.edu/supct/html/05-908.ZS.html
15/ http://www.law.cornell.edu/supct/html/99-699.ZS.html


Stone, Geoffrey R. Stone, “Our Fill-in-the-Blank Constitution, The New York Times (April 14, 2010) http://www.nytimes.com/2010/04/14/opinion/14stone.html


Morano, Andrew, “Unified Theory of Glenn Beck,” Newsweek (April 13, 2010) http://www.newsweek.com/id/236326/output/print

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair