In Elena Kagan's confirmation hearings, conservative senators have made two things clear: their disdain for "liberal activist" judges and their fear she will be one.
What the Republicans want are judges who will apply the Constitution according to the original meaning as understood by the framers. They believe that when the Constitution gives no explicit guidance, judges must defer to the democratic branches of government.
What Republicans oppose, as Alabama Sen. Jeff Sessions put it, are judges who use "their power to redefine the meaning of our Constitution and have the result of advancing that judge's preferred social policies."
When conservatives talk about judicial activism, they have in mind a variety of Supreme Court decisions—legalizing abortion, hindering the death penalty, allowing flag-burning, and preventing officially sponsored prayer in public schools. All these, they believe, ignored the plain words or the original meaning of the text.
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But there is another decision that fits any definition of a liberal, activist approach. It came in a 2003 case, Lawrence v. Texas, involving two men who were prosecuted after being caught by police having sex in a private bedroom.
In a 1986 challenge to sodomy laws, the Supreme Court derided the notion that the Constitution protects "a fundamental right upon homosexuals to engage in sodomy." But this time, it ruled such statutes unconstitutional.
How come? Because the government may not regulate private, consensual, noncommercial sex among adults, even gay ones. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Anthony Kennedy.
At the time, the outcome was controversial. Conservative commentator David Frum said it would have been "unimaginable to the Constitution's authors." The conservative Family Research Council lamented that "judicial activists have used their fertile imagination to create rights that simply don't exist in the Constitution," and "imposed their own moral judgments in place of state legislatures."
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The decision bore the telltale signs of liberal activism: It did not rest on any clear provision of the Constitution. It did not match up with the laws in effect at the time of the nation's founding. It discarded well-established precedents. And it created a social policy strongly favored by liberals.
But after the initial denunciations, something odd happened: The decision vanished from public debate.
Roe v. Wade led to endless battles over abortion laws. The school prayer decisions have been defied in many districts. But once the sodomy laws were gone, they were forgotten. No one mourned them, and no one tried to bring them back.
Well, almost no one. The Texas GOP's new platform says unabashedly, "We oppose the legalization of sodomy. We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy."
Last year, the Oklahoma Republican Party came out against "the elimination of laws against sodomy." The Montana GOP agrees.
That's right. They want to allow the states to put gay and lesbian couples in jail for something (oral or anal sex) that millions of heterosexual couples do all the time.
But this sentiment is not exactly sweeping the country—even the red states. GOP senators had the chance to ask Kagan what she thought of the sodomy decision, and not one of them did. No one had the slightest desire to denounce or even revisit the court's ruling.
There are a few possible explanations for that. Maybe Republicans think sodomy laws are impossible to justify and secretly don't mind that the court struck them down. But that amounts to favoring judicial activism if you like the results, which is exactly what they lambaste liberals for doing.
Or maybe it's because, though they would prefer for the court to uphold sodomy laws, they fear the political consequences of saying so. But that suggests that when the court's activists imposed their moral preferences, they were also "imposing" those of the American people.
Or maybe it's because they realize that laws trampling liberties most people take for granted can't be squared with the spirit of freedom and equality that defines the Constitution—even if the letter of the Constitution has nothing obvious to say on the particular matter at hand.
Senate Republicans may vocally oppose judicial activism. But sometimes, they really, really don't want to fight it.
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