Saturday, April 4, 2009

Utterly Empty Rhetoric: Some Conservatives Argue That the Iowa Supreme Court Engaged in "Judicial Activism"

Opponents of the Iowa Supreme Court ruling that invalidates the state's anti-gay marriage law have invoked a popular rhetorical tool used to challenge court opinions: "Judicial activism." RNC Chair Michael Steele, for example, describes the ruling as "another example of judicial activism currently threatening family values in America." Conservative Ed Whelan posted an essay on the National Review Online which argues that the ruling proves that: "The lawless judicial attack on traditional marriage and on representative government continues." Republican State Representative Roy Blunt of Missouri opines that: "The Iowa Supreme Court chose today to legislate from the bench by redefining marriage without any concern or deference to the democratic process. . . ." Conservative blogger Rod Dreher at Beliefnet contends that "gay marriage" was "forced on Iowa." Finally, a Des Moines Register article quotes various same-sex marriage opponents who argue that the Iowa Supreme Court "stepped out of its proper role," "redefined[d] marriage," and "advance[d] an agenda the majority of Americans reject."

Don't Believe the Hype: Judicial Activism Is an Utterly Empty Concept
Judicial activism is an utterly empty concept. Contrary to its deceptive connotation, the phrase does not articulate a real theory of judging. Instead, judicial activism is simply a rhetorical device used by individuals across the political spectrum who wish to bash courts for invalidating statutes they find desirable. If a person does not favor a particular law, he or she will not describe a court's invalidation of such law as an awful moment of judicial activism.

Claims of judicial activism are commonly associated with conservatives who fear "liberal" (or "elite") judges imposing their views upon a more moderate or conservative society. But liberals have also complained of overzealous judges defeating democracy. Indeed, one of the most highly criticized eras in the history of the Supreme Court began at the turn of the 20th Century when conservative free market justices liberally construed the Fourteenth Amendment and recognized a constitutionally protect right of "economic liberty."

During the so-called "Lochner Era," the Supreme Court used the concept of economic liberty to invalidate over 200 state and federal laws that regulated the economy and the health and safety of workers and the public. This pattern continued up until the New Deal -- after which the Great Depression, turnover in the Court's personnel, FDR's vitriolic criticism of Court rulings, and a "switch" in one justice's position on the subject ushered in a new era of judicial deference on economic issues.

More recently, conservative federal judges have invoked the ambiguous concepts of federalism and state sovereignty in order to impose drastic limits on the operation of federal statutes, particularly in the area of civil rights. Yet, conservatives did not blast the Rehnquist Court for its "activism."

The Iowa Supreme Court Simply Applied the Law
The Iowa Supreme Court's ruling is steeped in constitutional analysis. One can disagree with the analysis, but that does not transform the ruling into something other than analysis.

Although the outcome of the case turns on the meaning of the Iowa constitution, much of the ruling discusses federal constitutional law regarding the meaning of equal protection. The Iowa Supreme Court held that denying same-sex marriage constitutes a form of "sexual orientation" discrimination. Even though the statute does not mention sexual orientation, it is patently clear that only gays and lesbians seek to enter into same-sex marriages (if not, we would see heterosexuals filing suit).

The Iowa Supreme Court then applied well established precedent and determined that because sexual orientation discrimination deviates from the state constitutional norm of equal protection, it could not engage in a deferential analysis of the state's reasons for banning gay marriage. Court's make these types of choices every day.

Although courts typically defer to lawmakers, when legislators use their authority to invade fundamental liberties or to discriminate on an improper basis, then judicial review is by necessity more invasive. Otherwise, constitutional freedoms would have very little meaning.

The Iowa Supreme Court invoked the same doctrinal concept of "rigid" judicial scrutiny that has allowed conservative judges to invalidate affirmative action policies, strike down a portion of the Violence Against Women Act, limit the ability of civil rights plaintiffs to recover damages from illegally behaving state governments, and to reverse a state court ruling grounded in statutory law, which ordered the Boy Scouts of America to stop discriminating on the basis of sexual orientation. If conservatives do not believe that the Iowa Supreme Court has the authority to overturn laws that violate the state constitution, then they must condemn conservative court rulings that invalidate statutes that implement liberal policy.

How About a "Real" Debate
Unlike many other progressives, the concepts of federalism and separation of powers do not threaten me. Indeed, these concepts have advanced progressive causes. Pointing to the separation of powers doctrine, liberal judges have deferred to legislatures and validated their efforts to remedy civil rights violations. And while southern states invoked "states' rights" rhetoric to justify slavery and secession, states have also invoked this concept in order to defy conservative federal policy on matters ranging from fugitive slaves, the environment, and criminal justice. Perhaps conservatives could find their "voice" in contemporary United States politics if they had the courage and creativity to view the Iowa ruling, for better or worse, as an exercise of state autonomy that traditional conservatives should respect.

The debate over the Iowa ruling, however, must not rest on the empty concept of judicial activism. If people disagree with the substance of the court's decision, they should debate the ruling on its own terms. Resorting to politically charged and bankrupt rhetoric will not advance discourse on this important subject.

Related Reading on Dissenting Justice: Iowa Supreme Court Strikes Down Gay Marriage Ban


Roy Lofquist said...


I have no legal training whatsoever but rather speak as an interested layman.

Aside from a couple of cases I agree with you that the courts apply the law correctly. The problem, as perceived by those who scream and holler, is that these decisions are made on a very narrow basis. They do not take into account the rest of the Bill of Rights and subsequent Amendments. There are some ambiguities.

The judiciary, rightly so and as a matter of necessity, attempts to narrow the issues in any litigation. This can lead to a bit of discontent in the great unwashed.


Darren Lenard Hutchinson said...

Thanks for the post, Roy. The ambiguity of the Constitution, the role of history, and the influence of the legislative and executive branches on the Court combine to create flexiblity regarding what legal experts would consider a "correct" decision. The Iowa court could have ruled the opposite way, and while I would been upset, I would not have considered it a bankrupt ruling. Maryland and New Jersey courts recently refused to find that their state constitutions prohibit bans on same-sex marriage. Those courts applied the very same principles as the Iowa court. In reality, constitutional law supports a range of "reasonable" outcomes. People only get worked up over outcomes they despise.

Roy Lofquist said...


Succinct and sensible. Thank you, Professor.


Anonymous said...

It seems silly to point out (because it ought to blatantly obvious to everyone, whether or not they are part of any legal community), but I agree with your assertion that constitutional law supports a range of outcomes we could call "reasonable." That's the nature of interpretation.

I do think, especially on such a contentious issue as same-sex marriage, that public officials (and I'm mainly thinking of politicians) ought to remind the general public of this reality. Unfortunately, Republican leaders in Iowa - though, let's be honest, this approach is not limited to any state or political party - seem to be completely undermining the judicial branch of government, attacking them as "judicial activists" who don't know the Constitution.

As a citizen (with no legal background but an appreciation for the judicial process), I am very frustrated by this irresponsible rhetoric, which seems only interested in pandering to social conservatives. Yet, it does help me be more patient when I come across other citizens who similarly attack the judicial branch. What examples, in media or government, do we have of more responsible assessment of legal decision-making?

Darren Lenard Hutchinson said...

Kylepayne - Thanks for your post. I think thatthe mainstream media outlets love to report "drama" rather than "analysis." They believe that people want to hear pliticians "cheer" or "bash" the ruling - rather than having an honest discussion of the legal arguments.

I definitely support the ruling, but as I said, a contrary ruling would not have caused me to smack down the court. If I disagree with a court's analysis, then I choose to focus on that. There are even parts of the Iowa ruling that I disagree with, but I support the ultimate outcome. Television does not appreciate nuance.

Anonymous said...


I found your blog while trying to find some background on the Iowa Supreme Court. Your thoughtful analysis and commentary is excellent and I wish it were part of a real dialog on television and radio political programs.

As a Missourian, and a Republican, and gay, needless to say, I'm disappointed though not surprised by Congressman Blunt's commentary. I do find it interesting though that we're hearing the same mantra: liberal activist judges. The ruling was unanimous. I cannot believe that there is not one "conservative" judge bench.

I'd submit that the Iowa Supreme Court ruling was indeed "conservative". The court looked turned to the State and federal constitutions for guidance and the constitution was clear. There is no doubt that there are judges across the country who do in instances use their position in an attempt to further a political or social agenda. To suggest that this is what happened in Iowa, in the heart of the midwest, with a unanimous decision is at best A STRETCH.

Thank you again for your thoughtful analysis and I look forward to following your blog!


Darren Lenard Hutchinson said...

Family Fairness: I think the application of intermediate scrutiny could have represented a compromise in order to get a unanimous opinion. I am not sure. The same-sex marriage cases have been decided by different courts; so they can decide the matter the way they choose. Federal law on the issue is unsettled.

Darren Lenard Hutchinson said...

Hi, Anonymous. Thanks for your comments. I like your additional thought: The judicial activism label suggests that every justice on the Iowa Supreme Court is a liberal.

Anonymous said...

Dear Mr. Hutchinson: Sorry I am late to this post. I read it politely and then laughed out loud, especially at this:

"Judicial activism is an utterly empty concept. Contrary to its deceptive connotation, the phrase does not articulate a real theory of judging."

If your assertion is so, why has every nomination of a Supreme Court Justice since Abe Fortas in 1968 been a circus that would put Richard Wagner to shame? Why are nominees to the court lying through their teeth, e.g. Clarence Thomas's preposterous assertion that he had never discussed ROE v. WADE before he came up to the Senate as a Supreme Court nominee? Let the man speak for himself, from the 10 September 91 session:

"Senator LEAHY: Have you ever had discussion of ROE v. Wade, other than in this room, in the 17 or 18 years it has been there?

Judge THOMAS: Only, I guess, Senator, in the fact that in the most general sense that other individuals express concerns one way or the other, and you listen and try to be thoughtful. If you are asking me if I have ever debated the contents of it, the answer to that is no, Senator."

Leahy didn't believe Thomas, and pressed him on Thomas's word "debated," trying to see if Thomas had discussed it in any sort of venue. But the answer remained the same: Nopenopenopenope...

Why produce such a preposterous farce that no one believed? The power judges wield, with precious little accountability is the only answer. Judicial activism exists. It is real. Ask Anthony Kennedy, though don't wait too long. Let Scalia, Thomas, Roberts, or Alito kick the bucket and be replaced by an Obama nominee, and Kennedy will be out in the cold, suffering from frostbite

You properly point out that when conservatives engage in judicial activism, they can always justify it. They have a point; the liberals can activate all they want, but whenever the conservatives step up to the throttle, the liberals promptly reverse course and bawl about the sanctity of precedent. It's a ratcheted argument, advancing only in one direction.

Still, if the sun came up in the west tomorrow morning, and the Supreme Court threw out ROE 9-0, who can doubt that, say, Ed Whelan would bawl hosannas, not mentioning "judicial activism" once. So you are right to call him on it. But denying the reality of judicial acitivism is wrong. The proper assault is on the fraudulence and disingenuousness of legal thinking. It seems impossible for honesty to flourish in law making, or commenting on the same.

If this were the eighteenth century, you would have slapped me across the face with your gloves, and our seconds arranging the duel. I'm obliged to you for reading, the more so since this post calls into question your life's work, and that of law in general. I will close by saying that while I laughed at your post, I laugh at most posts by lawyers on law. Both Alberto Gonzales and Eric Holder have the dignity to be styled "The Honorable." Who really thinks that either are?

Sincerely yours,
Gregory Koster
(not of CUNY)

Darren Lenard Hutchinson said...

Anonymous -- you are conflating claims of "judicial activism" with "judicial ideology." Politicians do not ask Supreme Court nominees about Roe v Wade to determine whether they are "judicial activists" but to determine their ideological position on the issue of choice.

Furthermore, I stand by my argument that phrase judicial activism does not advance a theory of judging. It is only invoked by people who disagree with a particular decision.

Any court ruling that strikes down a law, however, will by definition "go against" the will of the legislature and, perhaps, public opinion (which do not always overlap). Accordingly, every court ruling which finds that a law is unconstitutional should lead to cries of judicial activism. But we only hear these arguments when lawmakers or members of the public strongly disagree with a ruling. The highly uneven application of this argument demonstrates that it is merely a political tool.

Also, I never said or implied that conservatives havea monopoly on the usage of "judicial activism" arguments. Also, I find your reference to Justice Kennedy interesting. He wields the most power of anyone on the Court. If "judicial activism" is real, Kennedy is the only justice on the court who can determine whether or not it happens.

Finally, your post does not call "into question" my "life's work." My life's work essentially involves teaching and debate. Your post allows me to do both of these things. Thanks for the opportunity!

Kenny said...

As an Iowan, and a follower of the case Varnum v. Brien, it has been absolutely frustrating to no end to see the complete misunderstandings so many people have about our Judicial system, and what takes place in a case. Nor do they really understand the true consequences of what they say when they label the Iowa Justices as "activists".

I came across your blog quite by accident, and wish I had two years ago when the debate started locally. In particular, you say "Judicial review is by necessity more invasive. Otherwise, constitutional freedoms would have very little meaning." It is a concept I have been banging my head against the desk to put into words for quite some time.

As a layman, and not very educated at that, something told me this case was constitutionally important, since it was not about what I or any one else believed about same-sex marriage, but how the law must be applied. As you point out, and I should have figured out over the past year, it is not only about this particular subject, but all freedoms. Thanks for helping connect the dots.

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