Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

The Kabuki Dance

Steven E. Meyer


June 19, 2009

When President Obama nominated Sonia Sotomayor to succeed retiring US Supreme Court Justice David Souter, he set in motion a ritual dance that has been carried on for decades. Federal Appeals Court Judge Sotomayor is considered liberal by those who identify themselves as conservative, so they automatically raise the time-tested objection that the president used a “liberal” litmus test to select her as his nominee. Justices, they say, should interpret the law and not engage in judicial activism.

The same dance occurs when a conservative candidate is nominated for a Court position. Those who identify themselves as liberal rail against a president who uses a “conservative” litmus test to select someone they believe has a right-wing agenda. Liberals made these arguments frequently when President Bush nominated John Roberts (2005) and Samuel Alito (2006) to the Court.

The fact is, history shows that “liberals” and “conservatives” alike are driven less by outrage over judicial activism than by their own ideological groundings. Conservatives and liberals both embrace judicial activism and validate the use of litmus tests when it suits their purposes. Here are just a few examples.

Some of the most ardent pro-life conservatives implored the courts in 2005 to get involved in the Terry Schiavo case. Conservatives opposed the decision of Schiavo’s husband to allow his comatose wife to die by having her feeding tube removed. Despite the fact that she had been in an irreversible, vegetative state for 15 years, conservatives dug deeply into judicial activism to seek support for their position. Although conservatives tried to take the Schiavo case to the Supreme Court, they were not successful. But they did make sure it was heard more than 20 times in Florida courts.

A similar case can be made about conservative judicial activism in support of a broad interpretation of the Second Amendment. Conservatives were successful when the Supreme Court, in the District of Columbia v. Heller (2008), ruled that individuals had the right to bear arms even if they were not associated with a militia.

In like manner, liberals have pushed hard over the years for the courts to step in to interpret the First Amendment to exclude religious observances from public venues, as the Court did in Engel v. Vitale (1962) and in Santa Fe Independent School District v. Doe (2000). Likewise, liberals pushed hard for the Court to strike down anti-abortion legislation, as it did in Roe v. Wade (1973), and to expand free speech at the expense of government restrictions, as the Court did in the Pentagon Papers case—The New York Times v. the United States (1971).

In reality, however, phrases such as judicial activism, litmus tests, and the limits of constructivism amount to little more than rhetorical tools to attack political enemies. They really do not shed much light on the qualifications of nominees.

We should start, then, by recognizing that litmus tests are used, regardless of how strongly nominees and presidents deny it. There is no such thing as a value-free nomination. Human beings are hard-wired to their values and those values serve as a fundamental underpinning of the decisions they make.

It is also true that except for certain specific areas the US Constitution is a very broad, general document that encourages judicial interpretation in the light of contemporary cultural norms.

If this were not the case, the Court might never have had the leeway to strike down the racist “separate but equal” laws (legitimized in the Court’s Plessy v. Fergusson decision of 1896) by means of Brown v. Board of Education in 1954.

—Steven E. Meyer
   National Defense University
   (The views expressed here are the author’s alone.)

“To respond to the author of this Commentary please email:
Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”