And the Lord spoke to Moses, saying: Speak to the children of Israel and say to them: … Do not do injustice in judgment by favoring the poor or deferring to the rich, but judge your neighbor in righteousness. (LEV. 19:1-15)
Joshua ben Perachiah said: Judge every person to the side of merit. (MISHNAH PIRKEI AVOT 1:6)
Rabbi Samuel bar Nachmani said, quoting Rabbi Jonathan: A judge who does not deliver judgments in perfect truth causes the divine presence to depart from the midst of Israel, for it is written: Because of the oppression of the poor, because of the sighing of the needy, now will I arise, saith the Lord.
(Ps. 12:6) (Babylonian Talmud, Tractate Sanhedrin 7a)
Many Americans were rightly appalled on hearing the Supreme Court’s ruling in the Alabama challenge to the Voting Rights Act. The five conservative justices essentially gutted what’s often called the most effective civil rights law in our history. It’s been the surest safeguard of the 15th Amendment’s promise, that the right of every citizen to vote shall not be denied or abridged. And it was gutted at a moment in history when too many states are trying any way they can to abridge that right: reducing voting hours, moving polling places, erecting expensive runarounds. This was no coincidence.
But the Voting Rights decision did something even more pernicious: It added a dangerous new layer to the incivility and hypocrisy that’s encrusting the Supreme Court’s functions and eroding its credibility. In blatant violation of their own declared principles, the justices gutted the voting law not because it transgressed any particular clause of the Constitution, but because it didn’t fit their conception of current facts on the ground. Congress had re-examined and reaffirmed the law as recently as 2006. The justices didn’t like the way Congress voted, so they outvoted it.
This is what’s known as judicial activism, or legislating from the bench. It’s precisely what conservatives have been vowing to eliminate from federal courts since they began filling them with like-minded judges during the Reagan years. It’s just what John Roberts promised not to do during his Senate confirmation hearings in 2005. “Judges are like umpires,” he said then. “Umpires don’t make the rules — they apply them.”
In reality, Roberts and his four conservative allies have been making rules at will since he took over. In 2006, in Rapanos v. United States, they attacked conservation, removing miles of wetlands from the protection of the Clean Water Act and opening them to development. In 2007, in Parents v. Seattle School District, they attacked affirmative action, outlawing a legitimate program for diversity in public schools.
In 2008, in Stoneridge Investment Partners v. Scientific-Atlanta, they attacked investor fraud protection, raising huge hurdles for investors trying to sue brokers selling fraudulent securities. In 2009, in Gross v. FBL Financial Services, they attacked employee rights, making it harder for older employees to seek federal protection against age discrimination.