In response to numerous comments to President Obama Is Getting A Bum Rap On The Judicial Activism Issue I shall expand upon the core concepts of the piece, by focusing upon three key phrases:  judicial activism, legal realism, and moral relativism.

• Many conservatives were irate over what they perceived to be judicial activism, when a court in California overturned a law that prohibited gay marriage, declaring it unconstitutional, but are comfortable in urging the U.S. Supreme Court to overturn ObamaCare – prompting the President’s observation that he is not sure why one overturning is “activism” while another overturning  is not.  In other words, it is only judicial activism when you do not like the outcome.  As I stated in the article the President has a point.  (But so do the conservatives; see below.)
• Legal realism was originally a novel description of the process by which judges perform the act of judging.   In a 1930 treatise (Law and The Modern Mind) that was then considered cynical and shocking, Judge Jerome Frank  declared that what judges really do is, first, they decide the case, and then they invent the nominal reasons to support their decision:  legal precedents (earlier decisions in similar cases) and the judge’s supposed analytical processes.   In other words,  Judge Frank shattered the myth that judges think before they act, and replaced it with the “reality”  that judges act before they think and that, in doing so, they are probably acting in a somewhat biased fashion rather than being disinterested and objective.
• Relativism ( or its nearly identical  sibling, moral relativism) was originally the truism that moral concepts or judgments such as “right” vs. “wrong,” liberty vs. security, or equal opportunity vs. equal outcomes,  cannot be empirically compared or verified – in other words, they represent belief or opinion, rather than fact or truth.

These three phrases have become, since Judge Frank’s time, important tools for the analysis of judicial behavior, and their meanings have been distorted and altered. Nevertheless, they would be less important – there would be no need to discuss judicial activism, and fewer opportunities for judges to engage in legal realism, or moral relativism – if our constitutions and laws were more clear.  Whether the topic is a constitution, a statute, an adopted referendum,  a local ordinance, or a private contract, if the wording  were sufficiently clear and unambiguous, there would be no need for a judge to interpret it;  the judge would identify the applicable law, and  the judge or jury would make findings of fact and arrive at a decision or verdict.

The problem is, no one has ever written a constitution or law or contract that was completely clear and unambiguous.  Judges are forced to interpret federal and state constitutions and laws because they are all, to some extent, of uncertain meaning.  The U.S. Constitution  (Justice Ginsburg to the contrary notwithstanding)  may be the best constitution in the history of the world, but no one thinks it is completely clear and unambiguous.

Another piece of the problem is one of drafting-conventions:  older documents tended to state general rules, in concise language, leaving it to the courts to use their analytic skills to determine the application of those general rules to particular cases; once upon a time, drafters recognized the futility of trying to anticipate every situation to which a rule might apply.   Modern drafters, perhaps inspired by the success of the tort lawyers in having their way with laws and contracts that established general principles rather than spelling out their particular applications, go to the opposite extreme:  they share the conceit that it is possible to imagine and address every circumstance that might fall within the scope of the document they are preparing.  There could not be a better example of the futility (not to say arrogance) of the modern technique than the ObamaCare legislation:  a couple of thousand pages of gibberish that we had to enact in order to find out what is in it (as suggested by Speaker Pelosi), and that we will not be able to comprehend fully until we see the Federal Regulations (probably even more voluminous) that it invites or necessitates.

In sum, one reason why we need judges is that we need people to interpret constitutions and laws, because our constitutions and laws are imperfectly written.  And we tend to judge our judges based upon whether we are pleased by their interpretations, which is why the terms, judicial activism, legal realism, and moral relativism become important.  So let us address these terms in greater depth.

Judicial Activism

Judicial activism is a phrase rarely associated with the opinions of two famous “conservative” judges, Justice Scalia of the U.S. Supreme Court and Judge Posner of the U.S. Circuit Court of Appeals.   Scalia is known for seeking to discern the original intent of the drafters of constitutional or statutory language, and to conservatives, this means he is an old-fashioned guy who is just trying to get back to the original meaning of that language;  conservatives love him for refusing to adopt the liberal technique of  considering subsequent social and economic and political events and coming up with a more modern interpretation of the original language.

Despite this, the Left accuses Justice Scalia of engaging in his own version of judicial activism – they assert that he is just like a liberal in going beyond the words of a document in trying to interpret it, and that the only difference between him and themselves is that he confines his search to external documents extant at the time of the drafting of the document (“original intent”)  and refuses to consider anything that has happened since the drafting of the original document. The Left claims that if Scalia were a true judicial non-activist, he would read just the original words and would skip the external sources, be they from the date of the document or since.

Judge Posner is another curious case:  like Scalia, he looks beyond the original language for external context, but the difference is that, for him, “context” often consists of economics – he tries to imagine what the drafters of the pertinent constitution, law, or contractual documents probably intended, based upon his efforts at divining their economic motivations at the time they drafted them.   Again, this drives many liberals (and, for that matter, this conservative attorney) nuts.

The point is that most judges (including even those generally thought of as conservatives) are, in a sense, judicial activists – they go beyond the documents they address  in order to interpret them, because they believe those documents are unclear or ambiguous; the issue is where they go, not whether, because go they must.  Judicial activism is not necessarily good or bad, in and of itself.

Legal Realism

Legal realism began as merely an attempt to provide lawyers with insight as to the judging process, but, with a persistent push by the American Left – and, in particular, by the faculties of Yale Law School and other elite law schools – it has morphed into a license for judges to bend the judicial process in order to achieve their personal visions of social and economic justice.  It is no surprise that judges are human and have biases and find it hard to be disinterested and objective, but it is revolutionary and dangerous to relieve our judges from the duty to make a bona fide attempt to think before they act – that is, to perform their duties in an unbiased manner.  As legal realism becomes the standard for judicial conduct, it replaces the  Rule of Law with a Rule of Power:   the law is whatever the holders of judicial or political power think it should be, and if that means that the law today is exactly the opposite of what it was yesterday, that is reality.  (That is also a working definition of an authoritarian state.)    The classic illustration of what legal realism has produced, is that today we have a President (Obama) and a Supreme Court Justice (Sotomayor) who not only have confessed to holding biases (as we all do), but have publicly proclaimed that it is appropriate for judges to act upon their biases and to decide cases based upon which party they deem more deserving of a win – even if that party would not necessarily be the winner based upon the applicable facts and law.

Moral Relativism

Moral relativism began as an affirmation that moral principles are subjective opinions and beliefs, not objective facts or truths.  Through the efforts of the Left, the phrase has come to express the further notion that one person’s moral preferences are  just as worthy as any other person’s,  regardless of how different or conflicting those versions might be.  For example, a moral relativist might consider Sharia law’s condonation of wife-beating to be every bit as worthy or legitimate as American laws prohibiting  the beating of any human being, and indeed if, say, the California legislature were to enact a law providing for a Sharia-law defense to any charge of wife-beating lodged against a Muslim male, the relativists would probably rush to find ways to overcome conservatives’ efforts to have the CA law ruled unconstitutional.   For conservatives, relativism is, at most, merely an acknowledgment that  moral precepts and principles are matters of opinion or belief, not a demonstration that conflicting values are equally worthy or appropriate or legitimate.

From the conservative perspective, the US Constitution codifies a moral perspective.  The Constitution  embodies a set of moral principles that were inspired by religious precepts or values (regardless of whether traceable to any particular religion).   The Founding Fathers (despite the rhetorical flourish of “we hold these truths to be self-evident . . .”) were under no illusion that they had discovered anything that could be empirically verified, but they believed that their constitution would be an effective foundation for the development of a prosperous and admirable country – they knew they were operating on opinion, not fact, but they bet their lives on shaping the country on the basis of that set of opinions.   They felt it was appropriate for a nation to establish a Rule of Law based upon a particular set of moral principles, and they were aware that it would be difficult to find an historical example of one that was not.

The position of the Left is not that a nation cannot or should not stick with a particular set of principles, it is merely that they dislike the set that was picked by the Founding Fathers and approved by the nation.  The Left is not necessarily amoral, it simply prefers a different morality.  Judicial activism, liberated by moral relativism and legitimized by legal realism, is the path to the Left’s goal of fundamental alteration of the moral principles of the original Constitution.  Moral relativism, with its evolved doctrine of moral equivalency between alternative governmental models, provides an intellectual veneer to the judicial rejection of the Constitutional gift of a liberal democracy, a minimally-regulated free-market economy, and a limited (and severely checked-and-balanced) central government, and to the replacement of that model with an intrusive, centrally-planned behemoth.

How do activism, realism, and relativism work together?

Consider the example of the Commerce Clause, which sets forth one of the enumerated powers delegated to the Congress under the U.S. Constitution(Article 1, Section 8, Clause 3), stating that Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” – the most controversial part of which is, the power to “regulate commerce . . . among the several states. . .”  It is hard to imagine six words that have been the subject of greater scrutiny.   Original-intent conservatives believe the clause empowers Congress only with regard to literal trading activities (as distinct  from, say, mining and manufacturing) between companies or individuals located in different states; the Left believes the clause encompasses every form of human activity that might affect any aspect of the economy of any part of the nation.

Point One of the analysis would be to observe that, with the exception of those who interpreted  the Commerce Clause to pertain solely to interstate trading activities, everyone on the Supreme Court who has ever advocated for a broader interpretation could be said to have been engaging in judicial activism.

Point Two of the analysis would be to realize that any interpretation of the Commerce Clause that would have the effect of substantially broadening the  reach of the federal government’s control over the private sector of the economy, would represent a repudiation of the fundamental principles and values that the Constitution was intended by the Founding Fathers to embody, and thus would represent an expression of moral relativism – it would effectively codify a judgment that free-market capitalism is no longer considered a better principle than planned-economy statism.

Point Three of the analysis would be to recognize that our judiciary has the means with which to do exactly that, acting under the rubric of  legal realism.

Here is an example of the application of that analysis:

The White House has urged the Supreme Court to rule that when the federal government, acting pursuant to the ObamaCare law and regulations, orders a private citizen to enter into a contract of insurance with an insurance company, the involuntary signing of that contract by that citizen represents an act of interstate commerce.  Clearly, nothing like the Individual Mandate (or anti-markets philosophy of ObamaCare as a whole) has ever before been adopted by our Congress – earlier judicial precedents may have some theoretical similarities, but these are minor or superficial.  Clearly, the Individual Mandate, and the breathtaking scope of ObamaCare as a whole, are directly at odds with the principles of free markets and individual and religious freedom that mark the Constitution as a whole.

It is conceivable that ObamaCare might be upheld; the death of the liberal-democracy/free-market capitalism model may already have been made possible by the 999 small cuts that have preceded it in the form of the various assaults on the Commerce Clause that were indulged by the courts out of impatience or dogma and that are presented by the White House as precedent for their position, even though none of those “precedents” was very relevant to ObamaCare and even though one cannot imagine any Founding Father reacting to ObamaCare with anything other than laughter, a heart attack, or a dueling pistol.  Precisely because of the weakness of those prior cases, it would be difficult to deny that if the Supremes were in fact to endorse the White House’s position on this matter, their decision would constitute a textbook case of judicial activism, moral relativism, and legal realism all wrapped up in one grotesque package.

So, what should our judges do?

They should recognize that some level of “judicial activism” is inescapable because our constitutions and laws will always require interpretation, but they should maintain a bias toward deference to the will of the people and their elected representatives, before moving to overturn laws on constitutional grounds, and, while recognizing that one can never totally escape one’s biases and instinctive preferences, they should seek to render justice in an objective and unbiased manner.

They should reject “moral relativism” and do their best to interpret and apply the language of our constitutions and laws in a way that is consistent not so much with the “original intent” of the drafters at the time when they drafted it as with the set of moral principles that manifestly guided the Founding Fathers when they prepared the original US Constitution and its initial set of amendments.

Justice Scalia, in particular, should give up on coming up with sentence X of paragraph Y of Federalist  Z as authority for divining the original intention of the drafters of a particular provision of the constitution, and should focus instead upon determining which interpretation of the constitutional provision is, in his opinion, most consistent with both the text of that constitutional provision and the manifest moral principles that inspired the entire Constitution.

What are the manifest moral principles of the Founding Fathers that our judges should apply?

It should be clear to any liberal that the Founding Fathers intended a liberal democratic republic, with a comprehensive set of checks and balances, a strong-but-limited executive branch, a meaningful set of “reserved powers” and states’ rights provisions, and a free-market, minimally-regulated, economy, as distinct from a centrally-planned welfare state; Karl Marx had not even been born when the U.S. Constitution was adopted.

None of this would make the American Left happy, because the whole point is that they do not like or accept those principles, and their hope is to change America into a nation that no longer prefers and reflects those principles.  Judicial activism, moral relativism, and legal realism are their instruments of propaganda; they are the rhetorical tools designed to enable the Left to subvert and undermine  those principles.

Conservatives have fallen into the trap of building their case against those principles by lumping them together under a label – judicial activism – that is an easy target because it fails to identify the real problem and yet is quite easy to isolate and shoot down, as the President did so deftly by his argument that conservatives opposed activism over gay marriage but favored it over ObamaCare.

The Left is correct in its assessment that those original American principles do not represent anything that is objectively correct or valid or indicative of any empirically demonstrable fact or truth or scientific discovery; they are merely principles that our founders preferred and that formed the framework for the building of this great nation.  But our judges should affirm these principles unapologetically.  The Left should not be allowed to do away with these principles by manipulating our judicial processes.