In the late 19th and early 20th century a man by the name of Ambrose Bierce, a journalist, author, and humorist, began penning satirical definitions of words in one of his newspaper columns. He defined a cynic as someone “whose faulty vision sees things as they are, not as they ought to be.” He defined contempt as “The feeling of a prudent man for an enemy who is too formidable safely to be opposed.” In 1906 these definitions were compiled into The Devil’s Dictionary, which consists of more than a thousand words and is structured just like a normal dictionary.
Bierce did not steer clear of the law and the legal profession. He defined a lawyer as “one skilled in circumvention of the law.” Justice is “a commodity which in a more or less adulterated condition the State sells to the citizen as a reward for his allegiance, taxes and personal service. And there are three definitions that he put forward that are apropos for my talk today. Speaking of the country’s two great political traditions, Bierce identified a Conservative as “a statesman who is enamored of existing evils, as distinguished from the Liberal, who wishes to replace them with others.” That which is “lawful” is, according to Bierce, “compatible with the will of a judge having jurisdiction.” And, finally, an egoist is “a person of low taste, more interested in himself than me.”
I am intrigued by Bierce’s definitions because while cynical, in both the traditional and in his own definition of the word, they also speak some truths. We live in a cynical age. More to the point, we live in an age of ugly and divisive political dialogue. Without a grasp of history or meaning we accuse those with whom we have honest disagreements not merely of being wrong or misguided, but of being idiotic or evil, of being Nazis and Fascists and Socialists and Communists and terrorists and Klansmen. We accuse them of being Hitler or Stalin or Lenin or Satan. These accusations are wrong in both sense of the word – they are wrong in fact and interpretation, but they are also wrong ethically and morally. To be intentionally ironic, and even hypocritical, these accusers are unaware of how fascistic and Stalinist, how idiotic and evil they are.
Our judicial system is not immune from these trends. Indeed, on both sides of the political all and across all ranges of the ideological spectrum the inclination is to try to appropriate those aspects of Constitutional law and our judicial system that we like and to disregard those that we don’t. And so in that spirit, and with Bierce’s definition of both an egoist and lawfulness in mind, I offer my own entries into a Devil’s Dictionary for our fraught political climate.
An activist judge is “a judge who does not act to misinterpret the constitution in ways that I see fit.”
Original Intent is “how I can best misrepresent a complex history into a simplistic sound bite to convince the listener that I know how Thomas Jefferson would have felt about the internet.”
Unelected judges are “men and women in black robes with black hearts who act in ways contrary to my interests.”
And, alas, it seems that the Constitution is now “ a document that serves as a useful weapon to hit my Nazi-Stalinist-Socialist-Communist-Hitler-loving-Satanist of an enemy over the head with.”
But perhaps a little perspective is in order. In a world in which the noisiest and the obnoxious get the most attention irrespective of talent, merit, or the intelligence of one’s views on the issue about which they are screaming (I’m talking to you Kanye West, Joe the Plumber, and anyone who has ever appeared on a reality show) it is worth stepping back and recognizing a few salient points, particularly when it comes to our Constitution and those who interpret it.
Almost universally the men and women on the court are not just intelligent, but are brilliant and committed public servants all of whom could be making much more money and garnering much more fame while being called much nicer names. I have been in the room with a number of Supreme Court judges, and almost across the board they have been thoughtful, dazzlingly articulate, and able to sort through ideas of great complexity and with long and sometimes tortured histories. It is precisely the fact that we do not elect them that allows to them to contemplate, think, and sometimes protect the rights of the few when the Constitution and the principles of the country demand it.
The accusation of “Judicial activism” really is a bit of an empty one. Assuming that we really do believe that the courts, and particularly the Supreme Court, are part of the system of checks and balances and that the judicial branch is coequal with the legislative and the executive branches, then the Supreme Court is sometimes going to challenge both the legislature and the executive. As my own definition indicates, “activism” tends to be in the eye of the beholder. The other side engages in activism. My side engages in complex legal assessments.
And while close decisions draw all of the sound and fury and bring out some of the very worst in our politicized dialogue, the reality is that the vast majority of cases that go before the Supreme Court end up with unanimous and near unanimous decisions. The vast majority of cases are decided by unanimous, 8-1, or 7-2 majorities. Far, far fewer cases end up with a 5-4 result than we would think from the tone of discussion about the court.
It seems clear, then, that we need to take a step back. That the Constitution and the interpretations of it are too important to become part of the maelstrom of ugliness that too often defines American life in the year 2009. Disagreement is a vital and cherished part of American civic life. But that guy whose politics you disagree with? He’s not a Nazi. He’s not a Stalinist. He’s almost certainly not even actually an enemy. He simply disagrees with you. Is that really so evil?
