The bigotry of "judicial activism"
Stephanie Jone’s Washington Post article, entitled “Thurgood Marshall’s legacy deserves cheers, not sneers“, is a solid response to the GOP flogging of Thurgood Marshall during the Kagan Supreme Court confirmation hearings last week; Marshall was accused repeatedly of being an “activist” judge. “Activist” is a term which is often used by conservatives to define a judge who goes beyond the Constitution to make law, rather than interpret it.
In a particularly obtuse interpretation, multiple Senators derided Marshall’s judicial record as overly “activist”, this record of defending individual rights of all citizens as clearly protected in the Constitution’s 14th, 15th and 16th amendments. It can be argued that Marshall fought against more than a century of bigoted judicial activism in the Supreme Court that served to deliberately curtail the Constitutional rights of black citizens. Bigotry takes many forms, and one of the oldest mechanisms for exercising bigotry is to deny that it is bigotry, and accuse those being denied their rights of bigotry themselves.The judges who denied the rights of citizens under the Constitution, and thereby “made” law were particularly odious kinds of judicial activists. For Marshall’s defense of the Constitution to be labeled judicial activism is an implicit acceptance of those judges who were denying the Constitution and whom he opposed.
It would seem that those who routinely utter the phrase “judicial activism” in a pejorative manner put little thought into what the phrase really means – and indeed, it appears to be little more than a partisan brush applied to any interpretation or judgment that offends the accuser’s political sensibilities.
More evidence of the Democratic and Republican parties’ trading places as the party of race; The Democrats have historically been the more bigoted of the two parties. With FDR, the Democrats started showing a conscience, and by 1965 the Republicans neatly began dosadoeing their way to the bigotry party as the Democrats under Kennedy and Johnson drove federal Civil Rights legislation, and subsequently lost a good portion of the deep South to the Republicans. (Another of many lines of evidence of this: the recently deceased Democratic Sen. Richard Byrd of West Virginia was a Ku Klux Klan leader in the 1940’s, fought against the Civil Rights legislation of the 1960’s, but gradually shed the open bigotry, and began supporting civil rights legislation in the 1990’s and 2000s. Compare with Republican Senators Jeff Sessions, Alabama, John Cornyn, Texas, Jon Kyl, Arizona, who just made the Thurgood-Marshall-is-an-activist-judge argument this week.)