The Politics of Activism

Justice John Paul Stevens pending retirement from the Supreme Court has been met with a collective yawn by most Americans.  But his retirement offers a great opportunity to examine how the judicial system, an entity that is supposed to be free of politics, tells us more about party affiliation than we like to admit.  In recent history (particularly during the Bush II administration) we heard a lot about so-called activist judges.  But when we deconstruct the term "activist judge" all it really means is someone who disagrees with our position. 




Senator John Cornyn (R-TX) says he'd have to "think about" confirming a gay Supreme Court justice. There are several issues raised here.  First, shouldn't he have to "think about" anyone who was nominated for the bench by either President Obama or Former President Bush?  In other words, he suggests that the only people to think about are those who do not share his political ideology.  Second, there is an inherent fear of anyone who brings their personal issues to their job.  Justice Sonia Sotamayor was in the proverbial hot seat because she made a comment about her belief that a wise Latina could make better judicial decisions than a white man even while saying that her job was to follow the law. And presumably (at least according to John Cornyn) a gay Supreme Court justice would filter all decisions through a gay lens as Justice Sotamayor will (presumably) filter everything through a Latina lens.  Quite frankly, there is no way that, as human beings, we can be completely objective about anything.  Our experiences shape who we are and there is no getting around that.

We heard no talk about "activist judges" when the Supreme Court allowed businesses to contribute unlimited funds to political candidates.  Nor has their been talk of activist judges when Time Warner was granted permission to limit the amount of bandwidth allotted to sites they deem nefarious like pornography and bittorrent sites. In other words, Supreme Court justices are only activists when it comes to the rights of those who are not white or heterosexual.  No activism is involved when businesses, despite their exorbitant wealth, are treated like people when it comes to campaign donations. But, it remains to be seen if Obama nominates an activist or pro-business judge for the soon-to-be-vacated seat.  But with six of the 10 or so people on the shortlist being women, it's a sure bet they eventual justice will be labeled an activist because she may uphold the right for a woman to make her own decisions about her body.