Activist Courts

Leo Kuper was a UCLA professor of sociology and former associate of Nelson Mandela when they were both young men fighting apartheid, and he is the one responsible for my belief that the courts are an instrument of social change. In Kuper’s view the courts were not only an instrument of change, they were an instrument of peaceful change and he believed that the openness of a society, which to him was a sign of its strength, could be inferred through its court system. On those terms courts have to be activists. I have therefore never been disturbed by those who called the U.S. Supreme Court activist. I felt it is a role that preserves the openness and continuity of the U.S. When the Supreme Court systematically tore down Jim Crow laws, those who didn’t believe in racial equality said the court was activist. In recent years the court has made decisions in line with the agenda of political conservatives, and those who are more progressive are saying this is an activist court. It would seem that the issue is not whether or not the court is engaging in activism. To my understanding that is one of its roles, and one we ought to be grateful for. Rather the issue appears twofold, is the court, tacitly or not, pursuing a partisan agenda? And, ought we to make a distinction between issues that have moral underpinnings like civil rights and those with political ones, such as the objections behind the challenge to health care legislation?