MUDDY LEGAL LANGUAGE

Teaching the role of the Supreme Court to secondary students can be tricky. A couple of intuitive notions are at play when considering this role and, in and of themselves, students can readily understand them and their implications on relevant structural elements of the judicial branch. One is that in a democracy, the majority rules and the other is that fairness calls on the majority not being able to have its way in certain situations – such as when the majority wants to tell you what you can say and what you cannot say. The first element relates to the authority of legislatures to make laws and set public policy. The second element more directly relates to the role of the court in that it is that body that determines when the legislature, the democratic body, goes too far. If the explanation of the court could stop there, the task of explaining it would not be too hard. But of course, it doesn't stop there.

To begin with, the rights that the court protects are not absolute. As the standard example goes, while you have the right to say what you want, you don't have the right to yell “fire” in a crowded theater. Or, to mention a not so often cited example, your property can't be taken away from you without due process of law. This is a complication that can confuse the student because many students tend to think in absolute terms – do you have the right or not? But it gets even more confusing than that. There are other obvious complications such as those entailed in the given situations in which litigants find themselves; there are the complications of the related law and there are the complications of past judgments – the precedents – of prior court decisions. Each of these has a bearing on a given case before the high court. And finally, there is the complication of the language that judges and those who comment on the work of the courts use to describe the institutional practices of these judges and courts.

Take the term, for example, “activist judges” or “activist courts.” Whether a judge or a court is “activist” is important; it reflects a central philosophical bias of a particular judge or court. It is also part of the political jargon the media uses to describe the activities of the judicial branch, either in the person of an individual judge or a particular court. In essence, the term is usually used to categorize decisions that overturn legislated laws – ostensibly because they go too far and offend the Constitution. It is the Constitution that, from a legal angle, identifies the rights we have. So, by finding a law unconstitutional, a court is saying the legislative branch passed a law and the executive branch signed a law that has in effect – even if unintentionally by the other branches – offended a provision of our constitution. The term activist is used somewhat pejoratively in that the judges, at least at the federal level, are not elected. It is interesting that the language does not say the legislators ignored the Constitution when they passed the challenged law. Instead, the prevailing language places the court in a defensive posture by implicating it is going against the wishes of the people, as expressed through their elected representatives. Usually when you hear the word “activist,” in this context, it is not meant to be a good thing. And the side that usually makes the charge that certain judges or courts are activists has been conservative or the Republican Party.

This charge has been used in a variety of cases – those that overturn federal law, those that have overturned state law or other legal practices, and those that have overturned prior judgments, the precedents – by finding such law or action offending some aspect of the Constitution, in one way or another. To explain this fully would take much more space than I care to take up here, but I hope you can see my main contention: this whole business of the courts and their judges gets complicated. And it doesn't end there.

I indicate above that the charge of activism leveled against the courts and judges has come mainly from our conservative politicians and pundits. But there have been enough right wing opinions issued by the courts that have also overturned legislated law. Some of these decisions have garnered enough public notice that the charge of activism has been leveled against them by our liberal or Democratic politicians and pundits as well. So to skirt the charge – and make this whole business even more complicated – the right, headed by Supreme Court Justice Antonin Scalia – has made a distinction. He distinguishes decisions as activist not on whether a court overturns a legislated law, but on whether the court is upholding or overturning a law based on a right or other basis not distinctly mentioned in the Constitution. If it is, then it is being activist. If it is not, then the court is not activist, but instead it is “engaged” or it is practicing engagement. An engaged court, according to this view, is just simply doing its job, even if it is overturning the will of the people. On behalf of civics instructors, let me thank the good justice for clearing up the whole thing.

But let us examine the main example that conservatives like to use in this distinction. They claim that overturning a precedent, the principle that abortion is a privacy issue, can be done because the Constitution does not specifically identify the right to an abortion and that relying on the constitutional provision protecting privacy is too broad a stretch. A conservative judge, in other words, could not protect this “right” because abortion, as a right, is not identified in the Constitution. On the other hand, the history of abortion and its regulation have not been so one-sided as to say that if the founders considered abortion they would not have designated it a private affair and, therefore, protected by the Fourth Amendment. Authorities, historically, have not been clear or one-sided in their consideration of the legality or morality of the practice. Even religious authority did not definitively proclaim abortion to be sinful through the centuries – the Roman Catholic Church did not ban abortions until the 1500s. While there seems to have always been a questioning of the morality of the practice, it is very likely that the founding fathers thought that such an issue should be determined by local standards. The issue became national when the Fourth Amendment, with its protection of privacy rights, became a nationally protected right through the auspices of the Fourteenth Amendment; that is, when the courts incorporated privacy into nationally recognized rights – which prohibits Congress or state authorities from legislating or performing governmental practices denying the right. Then the question became: when the founding fathers ratified the Fourth Amendment, would they have considered the decision of getting an abortion a private matter? To say that they had to specifically identify abortion in the text of the Constitution is, I believe, irrational – the language of the Constitution was not written with that level of specificity. For example, do you have privacy rights concerning your collection of photos? Most would say you do, but the Constitution doesn't mention photos – they didn't even exist in the 1790s. If courts are to become “engaged,” they need to be reasonable in their engagement.

According to Justice Ruth Bader Ginsberg, when it comes to judging whether a law, policy, or a precedent is constitutional or not, one can ask three questions: does the legal question before the court relate to a violation of a fundamental right? Does the legal question before the court relate to frustrating the political process? And does the legal question before the court relate to an alleged discrimination of minorities? If the answer is yes to any of these questions, justices should be extra vigilant in reviewing the case and seek solutions that are the least offensive to any of the rights violated.

How activist is our current Supreme Court?¹ Both liberals and conservatives have leveled the charge against the current sitting high court – the Roberts Court. According to the New York Times, the following score card can be issued: In terms of reversing the court's own precedents, the Roberts Court has done this in 1.7% of its cases compared with the Warren Court (1953-1969) and the Rehnquist Court (1986-2005) which had, respectively, a 2.4% rate. In terms of overturning laws, the Roberts Court has done this in 3.8% of its cases compared to the Burger Court (1969-1986) which had a 8.9% rate. Generally, comparing the Roberts Court to courts in the post World War II period, our current court has not been particularly activist, at least as measured by the metrics just indicated. But then again, a civics teacher who is trying to explain all this might say, “Yes, but this doesn't indicate how engaged these courts were.” Huh? Oh well; perhaps a teacher should just avoid, no matter how important, the term “activism” or “engagement” all together. After all, its use has been mostly for political purposes. Liberals regard the court activist when it overturns liberal laws and conservatives do so when the court overturns conservative laws. The important point is that the court can overturn laws as the Congress can pass and the President can sign constitutional or unconstitutional laws. Students should know what that means and why it is that that authority exists.

1For a helpful summary of the Roberts Court's level of activism, see Liptak, A. (2013). How activist is the Supreme Court? The New York Times, October 13, Sunday Review section, p. 4. The account of the language game introduced by Justice Scalia - “activism” vs. “engagement,” as well as the percentages used to compare the Roberts Court with previous courts, is derived from this article.