Activist Judges

So the latest conservative beef seems to be with the basic structure of our national government--the independence of the judicial branch. As Dahlia Lithwick writes for Slate magazine here, the New York Times bestseller Men In Black has risen to the top almost exclusively because of recommendations by right-wing commentators. The basic tone of the book is an attack on judges for making decisions the writer doesn't agree with. And it's a best-seller.

It may be that folks who throw the phrase "activist judges" around are not actually trying to attack the foundations of our government by suggesting that the judicial branch should not be independent from the executive and legislative branches. Rather, they may be relying on that independence to provide a foil for their own partisan posturing, knowing that in all reality the judicial system must continue to make independent decisions. (Ironically, they don't seem to be complaining too much about Bush v. Gore, one of the most activist decisions by the Supreme Court in many years.)

The strength of the judicial system is not that it is always right, or even that it is always fair, but that it is a different mode of democracy from the legislative mode. In the judicial system, people get a hearing and the chance to argue the facts. Decisions are made based on a long-standing system of criteria, and careful interpretation of existing law.

It might be possible to argue that the judicial system is less biased than the legislative system of democracy. At the very least, it is possible to argue that it is biased in a different way. Not necessarily in a more "liberal" way, but biased toward the letter of the law, rather than the spirit of political struggle. In fact, in that way it is more conservative, because it preserves the law's effect when momentary political struggles sway public opinion. We need both forms of democracy, however inconvenient, and to me it is a show of bad faith for people to disagree so disrespectfully as to wish for the destruction of the one they are in conflict with. Conflict is the driving force behind our government, and to bring it to an end it to bring to an end the democracy it gives life to.