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Justice John Dooley and Judicial Activism
Burlington – Vermont Supreme Court Justice John Dooley did a lawyerly review of definitions of judicial activism, his topic at an ethics symposium at the University of Vermont in mid-April. He looked at five categories of definitions and rejected them all, although some might have a grain of truth in them, he suggested.
Then he revealed what he really thought politicians mean when they sling the term at sitting judges: "First, it's about sex,”" the justice said to the audience’s quiet but knowing laughter.
Dooley had said he would relate the question of judicial activism to the Baker v. State decision, which required Vermont to afford all the benefits of marriage to same-sex couples, and to the United States Supreme Court's ruling in Lawrence v. Texas, which struck down that state's sodomy laws (see "Blind Justice" in the April 2003 issue and "We Won!" in the August 2003 issue of OITM for background on Lawrence).
The five charges or indicators Dooley found in a database search (5000 hits on "judicial activism") included: striking down a law adopted by a legislature; ignoring precedent; legislating from the bench; departing from accepted judicial methodology; and issuing a results-oriented ruling.
Dooley argued that neither the Baker decision nor the Lawrence decision of the U.S. Supreme Court met these criteria, or if they did, the charge of judicial activism was unwarranted. Striking down laws is part of the justice's job when they conflict with founding documents, for example. And the Baker ruling, he said, was "certainly not" results-oriented, or the court would not have turned the matter back to the legislature to address. For the same reason, it did not qualify as "legislating from the bench."
The justice defended the judicial process the Baker court used as one that was clearly set out 25 years ago by Justice Hayes in State v. Jewett: considering what the Vermont constitution says, the text of the law and the history of its creation, whether other states have laws with similar language, and the historical and sociological environment.
And, he said, as far as "ignoring precedent," in the Baker case, "there was no precedent to ignore." The Lawrence ruling did not "ignore" precedent, it explicitly overturned it by repudiating the previous ruling on privacy and sexual acts between consenting adults of the same sex in Bowers v. Hardwick.
The three things that charges of judicial activism are really about, Dooley said, are sex (the culture wars, often involving religious views of sex); equal protection and substantive due process; and whether you think the decision is right or wrong.
The founders, he added, "didn't write much about sex in the Constitution: liberty, equality, yes, but not much about sex. If you take sex and add the culture wars, it adds to the likelihood that [a given ruling] will be labeled judicial activism."
Supporting his second point, Dooley said, "Whenever you're relying on equal protection, you'll have a charge of judicial activism." Equal protection and due process rights are based on the 14th Amendment, and "there's not a lot of content in there."
Vermont's Common Benefits clause, on which the Baker decision was based, "is equivalent to the equal protection clause. We're dealing here with a document from 1777. It expresses a view of equality very different from ours, one in reaction to royal privilege. We are interpreting texts that are incredibly old, archaic, vague, and broad."
His final point would seem to be self-explanatory, that charges of judicial activism arise when someone thinks the decision is wrong. "Thank God for Tom DeLay," Dooley said to laughter from the audience. "It's just that he makes this point very clear." The reference was to the Terry Schiavo case in Florida, and Congress’s passage of a federal bill that applied solely to her case and directed the federal courts to start the case over from scratch. The federal judiciary refused to rehear the case. Dooley summarized DeLay's commentary this way: "'We told you what to do, you didn't do it, and now there'll be hell to pay.'"
He disputed the charge that judges "want vague language" so they can impose their own values. "That's wrong," he said. "We need to modernize our constitution. Vermont's is the oldest, least amended, and shortest among the state constitutions. More recent constitutions are more progressive."
He acknowledged that opening the founding document to change could be "scary," since "all of a sudden you've got somebody wanting to use it to define marriage." But he insisted that the justices' job would be easier if amending and modernizing the state's constitution were not "nearly impossible" as he said it is in Vermont. "Give me a better document."