by James C. Cobb
I was alternatively puzzled and amused by the torrent of praise showered on Rosa Parks, one of the most celebrated social activists of the twentieth century, by many of the same folks who are quick to condemn other activists who allegedly operate from a lofty court bench rather than a lowly municipal bus. Meanwhile, these conservative critics of “judicial activism” laud Supreme Court nominee Samuel Alito as a paragon of “judicial restraint,” citing his warning that the courts must not “step over the line into the fields of lawmaking or governmental administration where the judiciary generally lacks both authority and expertise.”
The prevailing outcry against activist judges has reached such a crescendo that the very principle of judicial review of congressional legislation is under attack, not just by pundits and politicos but by some prominent jurists, most notably perhaps, Supreme Court Justice Antonin Scalia. Scalia and other conservatives who challenge judicial review charge that it has become the vehicle by which an elitist liberal minority may thwart the will of a more mainstream popular majority. These sentiments are borne out in a recent poll showing 58 percent of the respondents believe judges “routinely ignore the will of the people.”
Some conservatives argue that scrapping judicial review will rectify this by giving the last word on what the Constitution means to the people themselves because if their elected lawmakers play too fast and loose with that sacred document, the sovereign voters can simply ballot the bastards out. Unfortunately, this reasoning threatens to reduce the Constitution to a literary chameleon whose meaning changes shades with every Gallup Poll. It also ignores persistent murmurings that our Washington lawmakers have, on occasion, been more responsive to the interests of the powerful and the moneyed than to those of their constituents at large. Judges who make rulings with no regard whatever for popular sentiment obviously run the risk of inviting unwanted challenges to judicial authority, but, as no less a conservative luminary than George F. Will has pointed out, if judicial review is the means by which governmental accountability to the Constitution is maintained, then its guiding principle must ultimately be that “majority rule, to which the political branches are subservient, does not trump constitutional law.”
Not only did Rosa Parks harbor few illusions about the political implications of majority rule for minority rights when she joined the NAACP a dozen years before she refused to vacate her seat on a Montgomery bus, but at that point, rather than overturning the separate but equal precedent established in Plessy v Ferguson, the organization was still trying nearly half a century later to get the high court simply to enforce it. In fact, the boycott triggered by Park’s defiance centered initially not on ending segregation on Montgomery buses but on guaranteeing equal treatment for riders of both races. Likewise, the catalyst for Briggs v. Elliott, which became the basis for Brown v. Board of Education, was not school segregation but the glaring disparities in provisions for black and white education in Clarendon County, S.C.
By the time Ms. Parks defied Jim Crow as practiced on that Montgomery bus in December, 1955, the Supreme Court had finally decided that even when ostensibly equal, racially separate facilities were an affront to the Constitution. Parks professed to have taken heart from this ruling, but she reportedly told Rev. Jesse Jackson that, at the time, her refusal to move to the back of the bus was inspired by her sense of obligation to Emmett Till, whose brutal murder a few months earlier had gone uninvestigated by the Justice Department and unpunished by the courts. As a crusader for minority rights in an earlier era of majority indifference, Rosa Parks clearly understood that far from being a virtue, whether it be judicial or otherwise, restraint in opposing injustice amounts to little more than another form of activism in its behalf.
James C. Cobb is the author of Away Down South: A History of Southern Identity and The Brown Decision, Jim Crow and Southern Identity and the Spalding Distinguished Professor of History at the University of Georgia. Go to his blog, CobBlog, to read his thoughts on Michael Brown’s budding consultancy career.