I’d like to devote this blog to President Obama’s nominee for the Supreme Court, Sonia Sotomayor. Certain people in certain circles have been raising noise about her qualifications, debating whether or not if her “life experiences” as a Latina woman may have clouded her judgment. The sound bite that has been thrown around endlessly since Sonia was first nominated by the President is this: “Judicial Activism.”
Judicial Activism invokes the terrifying prospect of such characters like Phyllis Schlafly (far right) or Cindy Sheehan (far left) lording over the Constitution from the High Court’s bench, wielding the power and ability to drastically interpret and bend the laws of United States at whim. This is a caricature.
Want to know what REAL Judicial Activism looks like?
When disputes arise and go to the Courts, judges are supposed to interpret the laws in the most rational way possible. This means essentially following the law and being true to the legislation’s intent. I want to let you know the cold hard fact that we in the disability community have seen Judicial Activism up close in all its actuality.
When ADA passed in the early 1990’s, it was a wonderful day for all of America’s 54+ million citizens with disability. However, over the years, certain special interests attempted to undermine the law by chipping away at it through the courts in cases such as Chevron v. Echazabal. To be sure, ADA has given the disability community a powerful weapon to ensure our rights but there are instances where the outcome is so vastly disappointing it veers in the direction of shameful judicial activism. Want a clear example? Look no farther than my state’s own Congressman, House Majority Leader Steny Hoyer. In 2004, Judicial Activism had narrowed the scope of ADA so severely that he called for ADA restoration to be passed (the ADA Amendment Act passed in 2009) in the following statement:
"My friends on the Republican side of the aisle talk a lot about 'judicial activism.' But there is no worse example of judicial activism than what the Supreme Court and lower federal courts have done regarding the ADA.
"I believe it's clear that the time has come for the United States Congress to get serious about restoring the original intent of the Americans With Disabilities Act, which passed Congress with overwhelming bipartisan majorities and which has enjoyed the strong support of Presidents of both major political parties.
Given the adverse rulings by the Supreme Court and lower courts, the time has come for us to consider aggressive legislative action in Congress to address the unmistakable weakening of the protections afforded under the ADA.” – Congressman Steny Hoyer, October 14 2004
Rep. Hoyer says it so perfectly; I don’t think I need to elaborate any further. THIS is what “Judicial Activism” looks like, my friends. THIS is what we in the disability community have had to deal with. THIS is why there is a pressing need for such organizations like AAPD and NAD that ensure the law is being interpreted properly.
The ADA was intended to become stronger, not weaker. Certainly, ADA should not have become so weak that one of the chief architects had to stand up and admonish today’s courts for such subordination of the original legal intent of both the Legislative and Executive branches. Is this kind of activism from the bench the will of our citizens, lawmakers, and the Constitution? I say no.
And I’m telling you, Sonia Sotomayor is not the face of Judicial Activism. Take it from the community that knows what Judicial Activism looks like.
Comment on Sonia Sotomayor: Judicial Activism and ADA by Leah Katz-Hernandez (and you bet, I hope to go to law school!!)