Judicial Activism - A Dangerous Appeal

Judicial Activism - A Dangerous Appeal

Today, Lauren Davidson wrote a piece (available here on PolicyMic) about a recent ruling of the Massachusetts Supreme Judicial Court that effectively made it legal to "upskirt" subway riders. As Ms. Davidson explains, a lady riding on a Boston subway no longer has an expectation of privacy that is violated by someone covertly taking cell pics up her skirt. Well before closing with an acknowledgment of the backlash consensus - with which, let there be no doubt, I add my own voice - she mentions that this ruling was handed down in spite of laws easily interpreted as barring the practice.

Conspicuously absent is any mention that this is the same high court that imposed Gay Marriage by directing the legislature to change the law by a deadline. I find this highly relevant, especially in bringing popular outrage to bear as part of the criticism of this ruling. Why should that matter? The defense was first amendment, and most gay marriage rulings include a presupposition that marriage is a "fundamental right", or that the right to "equal protection" requires states to grant it. Is this court free to take very broad views of areas carved out from legislative prerogative, or isn't it?

Please don't misunderstand: I am not equating gay marriage with being a pervert on a subway. Morally and ethically, there is no comparison. I think a person sitting on a subway has a "reasonable expectation" of privacy, and this violates it; however, when a court takes a broad view of individual rights carved out and protected, permitting no sway to community standards, then advocates of individual rights will not always agree with the interpretation. 

After all, Ms  Davidson reminds us that "[p]eeping Toms are by no means a new phenomenon", and technology merely eases their ability to act as they will. Alright, so a court tempered by concern for local customs, mores, and the reasonable expectations that are culturally embedded by these customs might extend the logic of previous interpretations to new conditions of the day (i.e. smartphones with cameras). Should anyone be surprised when a court that ignores history and original intent and sweeps aside deep understandings of civil institutions fails to uphold other aspects of civil society, though?

My main admonition to advocates of gay marriage that I feel this story underscores is this: Even if your argument is right in every way, there is still value to you of not supporting judicial activism and making appeals at the ballot box, in elections, and to elected leaders. You should respect the process because there will be other aspects of judicial activism you won't support. After all, a lesbian couple might like to ride a subway in Boston and be respected and feel safe.

I think it is an individual's right to contract as one sees fit; however, many economic progressives see Lochner v. New York as one of the strongest showings of libertarian judicial activism ever handed down from the U.S. Supreme Court. If civil liberties are sufficient justification to run roughshod over popular sentiment, then it's certainly fair, though. There was a judicial majority in favor of quashing the minimum wage. How can there be an absolute right to have community acknowledgement and equal treatment of a marital union, but no absolute right to ply a trade and develop skills before existing productivity garners a certain wage on the free market? It cannot be more natural to marry than to eat!

This argument does not, reductio ad absurdum, imply that I oppose any judicial protections from legislative infringements. If legislation allowed indentured servitude, that would be neither an area for "local standards" nor for "freedom of contract", because the 13th Amendment clearly bars that practice. Likewise, I wish the courts would hold the Transportation Security Administration (TSA) to the strictures of the 4th Amendment. There is a textual basis for proscribing legislative authority in these areas. If you attempt to give the judiciary an even broader scope, without Constitutional grounding gained at the ballot box, be wary: the pendulum tends to reverse sway.