I caught the debate over Rick Warren on a clip on Towleroad with Washington Post columnist Jonathan Capehart (here). What really caught my ear was the point about activist judges. I am so tired of conservatives screaming about activist judges. This refrain dates back to the Brown v. Board of Education decision of 1954. The uproar that followed that decision was incredible. White people, particularly in the South, lost their minds. A group of nine Justices changed laws that reflected a long held tradition on the subordination of African Americans, a tradition that attempted to enshrine the inferiority of African Americans. The way of life in white America was attacked. People should have been given an opportunity to vote whether or not blacks should be allowed to go to school with whites, according to their (and the modern day conservative's) philosophy. I have no question as to how that popular vote would have gone during that time period.
So called activist judges have been the saviors of minority groups suffering from the tyranny of the majority, something black folks should recognize with no problem (though when it comes to gay rights, religion seems to cloud the memory quite effectively). The Supreme Court case Loving v. Virginia is another example of "judicial activism." Interestingly, District of Columbia v. Heller is an example of judicial activism. However, because that type of activism was welcomed by conservatives, the decision has not been couched with similar language (U.S. Fourth Circuit judge J. Harvie Wilkinson, in a recent article for the Virginia Law Review, likened the Heller decision to Roe v. Wade in terms of judicial activism, albeit from the conservative perspective, concluding that the results were equally damaging to the interpretation of the U.S. Constitution). Essentially, judicial activism cuts both ways. Conservatives, however, crow the loudest when that activism goes against their particular perspectives. Moreover, the broader media allows them to set the terms of the debate (damned "liberal" media).
I simply want conservatives to be honest with regard to the history of their disdain of "judicial activism." And in order to do so, they will have to be brave enough to stand by the position that the SCOTUS took inappropriate steps in advancing the Civil Rights Movement's aims. Furthermore, and I have heard this before, black folk should have continued to work with state legislatures to advance their aims (for supporters of gay rights, that should sound awfully familiar). The Brown decision is the root of that term, and the derision that supports it. Own it conservatives. Embrace the past as it really was. Don't attempt to make it up as you go along, or mysteriously forget the historical record when it reflects less favorably on your positions. I am sure that Bill Buckley was as horrified by the action taken by the SCOTUS in 1954 as any white Southern contemporary.
I have attempted to break this down so that it's forever broke. I want conservatives to be honest in their positions, and in the history of those positions. The past can be ugly. There are certainly things in the American past that I wish were different, but they aren't. Conservatives need to come to grips with that reality. Good luck, and please stop crowing about "judicial activists." There are too many decisions rendered by judges that fall into that category for that term to be useful any longer. Finally, remember that if a day comes and conservatives are in the minority and pushing for recognition of their rights, they will be praising the court that had the temerity to act on their behalf, thus saving them from a tyrannous majority. Good luck to you, if that day ever comes.