The nonsense of judicial activism

Issue December 2005

Gov. Romney's recent remarks to the Federalist Society in Washington included criticism that our Supreme Judicial Court had chosen "social congratulations" over the law in its decision in the Goodridge case, which upheld the right of same-sex individuals to marry. He argued that the justices of the majority of the court substituted their own "social proclivities" for the law in their decision-making. He decried "allowing judges to expand the constitution."

His attack on what is often called "judicial activism" results either from a failure to understand the basic concepts involved in American democracy or efforts to pander for political gain to others who lack that basic understanding. Given his intelligence, the later seems more likely. Actually, given the offensive and unsophisticated statements of others at that convention, the later seems almost certain.

Like an increasing number of terms used in current political drivel, "judicial activism" is not often descriptive of the actions to which it is applied. And, as used in most contexts, it is nonsensical. It is most commonly used to suggest that judges are acting outside the scope of their authority and exercising power reserved to other branches of government or to the people themselves. It is, as Supreme Judicial Court Chief Justice Margaret Marshall has noted, usually used by critics who do not like the holding of a particular court opinion.

The beauty of the foresight of the framers of our state and federal constitutions was not that they could predict all future conditions and events for which judicial interpretations would need to be made. The beauty was, instead, their recognition that they could not. Accordingly, our constitutions provide a framework for the structure of our government, describe the authority of three branches in which authority is vested, outline various procedures for the operation of the government and enunciate rights which are reserved to the people. Although some of the procedures are specified in detail, many of the rights and principles are enunciated in very broad terms. And purposefully so.

In 1780, when the Massachusetts Constitution was written, its protections were thought to apply only to free, white, propertied males. Yet just three years later, Chief Justice William Cushing of the Supreme Judicial Court interpreted the new constitution to provide freedom for Quock Walker, a slave seeking freedom, and to prohibit slavery in the commonwealth. In 1954, the U.S. Supreme Court interpreted the U.S. Constitution to forbid segregation of public school students because of race. "Social congratulations"? "Judicial activism"? No. Just our courts interpreting the word "equal" as written in the 1700s.

It is not important whether John Adams might be surprised at the SJC decision in Goodridge as Gov. Romney believes. It is important that Adams and others who wrote our state and federal constitutions understood the meaning of the rights and principles in the societal plan which they created. Sadly, this understanding is lacking in many of our leaders today.