Houston Democrats

For example, more than 60 years ago, the court considered an Oklahoma law that required the sterilization of anyone convicted twice of a felony involving moral turpitude (in that case, the crime was robbery). The court held that the law did not provide equal protection and added that forced sterilization was unconstitutional because the right to procreate is a fundamental aspect of the liberty protected by the Constitution. The justices were "making" the law.

Likewise, in the landmark decision of Brown v. Board of Education, the justices "made" the law in deciding that the equal protection clause prohibited racial segregation in schools and in overruling the infamous decision of Plessy v. Ferguson, which had held the opposite.

Edwin Chemerinsky was one of this article’s authors.  For those of of you who are unfamiliar with him, he wrote a book called Constitutional Law.  This is one of the textbooks law professors use to teach Con Law, and the textbook used in my Con Law course.  I still have it and have used it more than I thought.  Chemerinsky taught the Con Law section of my bar review course.  He’s a Con Law expert.  Basically all he does is read Constitutional law cases.

The whole argument against “activist judges” usually boils down to “we don’t agree with your decision.” Roe v Wade is a classic example, as is Griswald v. Connecticut which declared unconstitutional a Connecticut statute that prevented pharmacies from selling birth control.  There is no specifically enumerated right in the Constitution to sell contraceptives.  However, the court ruled (essentially) that everybody has autonomy over their reproductive rights.  

What the right really wants is to hold judges in check when they attain an electoral victory that is unconstitutional.  One of the arguments the right often uses is “the will of the people voted for this statute; therefore a judge should overturn it” – or something to that effect.  What the right fails to realize is a majority of Americans can have an unconstitutional opinion.  For example, the case Loving v. Virginia ruled unconstitutional a Virginia law forbidding interracial marriage.  This Court decided this case in the mid-late 1960s.  A Gallup poll of the South from 1965 discovered a majority of Southerners were for a legal prohibition on interracial marriage.  According to the rights political thinking, this statute was fine because a majority of people supported it.

A great current example is gay marriage.  There are strong Constitutional arguments against these statutes – one based on equal protection and one based on fundamental rights.  I have no idea how a court would rule on these amendments or initiatives.  But the point is a good Constitutional lawyer could make a solid argument they are unconstitutional and sway a judge on the issue.  The right desperately wants to prevent this from happening, probably because they (hopefully) know at some level their initiatives are unconstitutional.

Chemerinsky is also dead-on accurate about common law being judge made.  Tort and Contract law are essentially derived almost entirely from judicial opinions.  For example, there is a string of tort cases dealing with proximate causation (a concept in tort law).  Every law student reads these cases (remember the Palsgraff case?) because they are the root of that particular tort concept. And I have yet to hear any complaints about those concepts.  They are now ingrained in negligence law.  And no one is complaining about those concepts.

In other words, this whole activist judges concept is a great marketing phrase, but nothing more.  It is not grounded in any understanding of legal history.  It is nothing more than another right wing canard, disguised as valid theory.
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