Surprise! The system might be working.
Most attention in this round of U.S. Supreme Court decisions seems to be directed at two in particular: the decision which found that detainees at Guantanamo Bay were still guaranteed the right of habeas corpus, and the decision in District of Columbia v. Heller, which overturned the district’s ban on handguns.
But they are not the only decisions made in this court session that have ramifications for our daily lives. The court found that Indiana’s requirement that a voter present current state or federal photo ID in order to cast a ballot did not place an “unconstitutional burden” on the right to vote. It also overturned a California law that would have prevented companies doing business with the state from fighting union organization. And the court overturned a decision that required New York to institute direct primary elections for judges. Apparently, this decision, while unanimous, was so odious that, in their concurring opinion, Justices Stevens and Souter quoted the Justice Thurgood Marshall: “The Constitution does not prohibit legislatures from enacting stupid laws.”
The Supreme Court’s decisions are always a mixed bag, and that’s as it should be. The court itself, as a separate constitutional power, ought not reflect the ideology of any party—and the U.S. Constitution itself is pretty clear about that.
So in a time when various courts, including our California Supreme Court, are accused of “judicial activism,” it’s worth noting that it is the job of our nation’s jurists to act on the cases before them. It is their job to interpret the laws passed by the legislature. And, most of all, it is their job to ensure that the laws passed by legislatures are in line with the Constitution’s principles.
This seems a good time to remind ourselves that the separation of powers are designed to protect us.
It is “judicial activism” that dismantled segregation. It is “judicial activism” that ensures newspapers can print without censors—and be held responsible for what they print. It is “judicial activism” that guarantees freedom of speech for protesters as opposite in their aims as those opposed to abortion and those opposed to limiting access to it.
These “judicial activists” are the reason we, as a people, are not (too) bullied by the rule of the majority; why punishment of crimes so rarely devolves into a lynch mob; why each of us is free to associate with whom we choose. Thanks to these “judicial activists,” we can still be assured of a day in court.
So let’s hear it for “judicial activists.” And let’s remember that, without a system of courts independent of politics (more or less), representative democracy becomes nothing but a game of numbers. For now, the system must be working. We know that because no one—neither right nor left, business nor labor, religious nor secular—is completely happy with the outcomes.
A little dissatisfaction is sometimes the best proof of democratic success. Fortunately, complaining is as American as apple pie.