Instructive comments in the Supreme Court race

Yesterday, I suggested that Linda Clifford's comments on the state Supreme Court's decision striking down limits on medical malpractice caps was instructive on the issue of judicial activism.

I think it is helpful to use a candidate's comments to illustrate the issue because many people commenting on the race - people like John Nichols, Dave Zweifel, Bruce Murphy and Bill Leuders - seem to have no conception at all of what they are talking about when it comes to questions of activism versus restraint.

Although some of them have lamented "partisanship" in the race, ideological partisanship is, ironically, the only lens through which they seem able to view it. Decisions, in their mind, are either "conservative" or "liberal. Although Zweifel and Nichols seem to be such strident partisans that they regard liberal decisions as rooted in a neutral principles in a way that conservative decisions are not, Murphy and Lueders seems to adopt a more cynical stance, i.e., "activism" is in the eye of the beholder.

To some degree this is self-evident. Pure objectivity is generally beyond us, but there is, nevertheless, a constellation of approaches to judging that can objectively be called activist and this is where Ms. Clifford's comments (like her previous onservation that the constitution must be allowed to "breathe" and give society "what it needs") are instructive.

"Three hundred and fifty thousand dollars is an insufficient amount in this day and age,”she said. “Whether the cap was categorically unconstitutional or arbitrarily too low, I think the result was correct.”,”she said.

Unless the cap was, as she puts it, "categorically unconstitutional" then the result was wrong. These malpractice caps were enacted by the people's democratically chosen representatives. Unless they are, for some reason, "categorically unconstitutional" then the court has no business setting them aside - whether or not Linda Clifford or a majority of justices think they are "too low." While our state's constitution does place certain limits on the legislature, the policy preferences of a majority of justices on the state's supreme court are not among them.

Some of you might wonder why we should care. Isn't this just geeky lawyer stuff? If the result is right, why worry about whether it was legitimate? The answer goes to the very foundation of democracy. Judges get to set aside the actions of our elected officials only when those actions violate some constitutional limitation on what election officials are permitted to do - not because judicial officers believe that "in this day and age" the legislature has chosen poorly or society "needs" something else.

Judicial restraint is normally associated with conservatives because, in recent years, judicial activism has generally been deployed in the furtherance of liberal causes, but that has not always been the case. As I have blogged before, the sort of ur-activist decisions are the notorious Dred Scott case and a later decision (1905) called Lochner v. New York in which the Court rolled out a concept called substantive due process (a bit of an oxymoron) to advance an extra-constitutional theory of property rights. (Lochner struck down a law limiting the hours that one could work in a bakery.)

Let's flip the malpractice caps. Say the legislature decided to remove them. A restraintist conservative judge (think of me) might regard that as poor public policy, but the legislature would be absolutely within its rights to do so - or even to enact other legislation that might be helpful to malpractice plaintiffs in a way that I think would harm medical care in the state. "Doing whatever is right" or "giving society" is simply not an accurate description of the judicial function. If you want to do those things, run for the legislature or for Governor.