The Strange Case Against Judicial Activism

In New Haven, Connecticut, eighteen firefighters(17 of whom were white and one hispanic) alleged that the city discriminated against them by failing to promote them, despite the fact that they had all passed written tests for promotions. The city invalidated the tests because none of the black firefighters who took the same tests were able to pass them, which resulted in the eighteen firefighters bringing a lawsuit upon the city of New Haven. Sonia Sotomayor, as a member of the 2008 Second Circuit panel, ruled that the city of New Haven had a right to throw out the tests as it had a "disparate impact" on minority firefighters. Sotomayor is now President Obama's Supreme Court nominee and this particular ruling has become a rallying cry by conservative opponents who have accused her of "judicial activisim."

Judicial activism occurs when a judge or justice decides a case based on their personal or political ideology as opposed to a strict adherence to the Constitution. Minority leader of the Senate, Mitch McConnell, said Sotomayor's federal appeals court ruling last year against white firefighters alleging reverse discrimination leaves the impression that she allows her agenda to affect her judgment and that she favors certain groups. "It's a troubling philosophy for any judge - let alone one nominated to our highest court - to convert empathy into favortism for particular groups," McConnell said.

If judicial activism is such a concern when nominating Supreme Court judges, then why do Republican Presidents nominate conservative judges while Democratic Presidents nominate liberal judges? In the case of the white firefighter discrimination case, Ricci v. DeStefano, the Supreme Court held 5-4 that New Haven's decision to ignore the test results were in violation of Title VII of the Civil Rights Act of 1964. The five members delivering the opinion were all conservative(Alito, Thomas, Scalia, and Roberts) with the exception of Justice Kennedy who is considered a moderate or "swing" voter. The dissenting opinions were all liberal(Ginsburg, Breyer, Stevens, and Souter). In Bush v. Gore, in which voter fraud was alleged in the 2000 presidential elections, the Supreme Court decided in a 5-4 vote to uphold Bush's victory over Gore. Need I say how those votes were split? Whether you agree with any of the Supreme Court's decisions or not, the fact remains that many votes are split along ideological lines and everyone on the Supreme Court, past and present, seems to be guilty of judicial activism.