Politics & Policy

Not Activist Enough

The Left's real problem with Priscilla Owen.

Texas Supreme Court Justice Priscilla Owen has become one of President Bush’s most controversial judicial nominees. First nominated to the U.S. Court of Appeals for the Fifth Circuit over four years ago, she has been blocked by Senate Democrats who charge she is a “judicial activist” and too extreme for the federal bench. An exceptionally qualified judge, she is now at the center of the fight to end the judicial filibuster. Barring a last-minute deal, Senate Majority Leader Bill Frist will use the vote on her nomination to force a change in Senate rules to eliminate the filibuster of judicial nominees.

Activist groups have sought to tar Justice Owen as an “activist” judge. A People for the American Way report charges Justice Owen “is a judicial activist who would allow her right wing ideology to trump her responsibilities as a judge to follow the law, not make it.” A coalition of environmental groups labels attack her “record of favoring special interests over public health and ordinary citizens.” The Alliance for Justice adds, “Justice Owen takes a hard-right, activist approach to judicial decision-making.” There is little in Justice Owen’s record to substantiate such claims, but the charges are repeated nonetheless.

As commonly understood, judicial activists are those judges who place their own policy preferences above the law in rendering opinions. Many would also argue it is particularly activist for a judge to strike down validly enacted laws or otherwise disregard legislative enactments without clear constitutional warrant. By this standard, Owen is arguably the least activist justice on the Texas supreme court–and far less activist than her critics would actually prefer.

The Alliance for Justice and various environmental groups label Justice Owen an “activist” for her opinion in FM Properties Operating Co. v. City of Austin, where she refused to join a majority of the Texas Supreme Court in striking down portions of the Texas water code. Senator Patrick Leahy (D., Vt.) likewise found this dissent to part of a “pattern of activism” in Justice Owen’s record, even though she voted to uphold a validly enacted statute. Usually when legislators complain about judicial activism, it is because their enactments were struck down, not upheld.

The activist charge is even more curious given the legal arguments Justice Owen rejected in this case. The majority in FM Properties based its decision upon the non-delegation doctrine–a legal doctrine that has become a virtual dead letter in federal law, and an anathema to environmentalists and liberal activist groups. When two judges on the U.S. Court of Appeals for the D.C. Circuit relied upon the non-delegation doctrine to strike down a federal regulation, many of the same groups that attack Owen for her dissent cried foul, calling the D.C. Circuit’s opinion “startling” and “extreme.” This makes the charge against Owen all the more disingenuous.

The centerpiece of the activist charge is In re Jane Doe, one of several cases in which the Texas supreme court applied the state’s law requiring parental notification for a minor seeking an abortion. In Doe, a majority of the Texas supreme court overruled the trial court’s denial of a judicial bypass. Three justices, including Owen, dissented.

Owen’s Doe decision gets so much attention not because of anything it says. Rather, all the attention is focused on then-Justice Alberto Gonzales’s concurrence, in which he wrote that to construe Texas’s parental-notification-for-abortion statute too narrowly would be “an unconscionable act of judicial activism.” Some believe this remark was directed at Justice Owen’s dissent–a charge Gonzales now denies. Whatever then-Justice Gonzales meant by his remarks–a question Ramesh Ponnuru addresses here–it is hard to read anything in Owen’s opinion as particularly “activist.”

At issue in the case was whether the trial court correctly denied a child’s petition to bypass the parental-notification requirement–a decision that had initially been upheld on appeal. While the majority thought the statute’s bypass requirements were met, Justice Owen dissented on the grounds that such fact-finding is the role of the trial court, and should not be reconsidered on appeal. As she explained, “The question in this case is not whether the Court would have ruled differently when confronted with all the evidence that the trial court heard. The question is whether legally sufficient evidence supports the trial court’s judgment. The answer to this latter question is yes.”

Even if one thinks Justice Owen got this decision wrong, it is difficult to label her opinion “activist.” Deference to a trial court’s fact-finding is one of the bedrock principles of appellate review. If this is to be considered “activist,” the label almost loses its meaning.

These misleading attacks are part of a larger pattern. In case after case, Owen’s critics give almost no consideration whatsoever to the legal merits of her decisions, focusing instead on the end result. In each case, if a corporation is the winner, groups like Earthjustice and the Alliance for Justice assume Justice Owen got it wrong. Such an approach to judicial decision-making is utterly lawless and a recipe for true judicial activism as it elevates policy preferences above the law. It is not Justice Owen’s approach to the law, and it is one of the many reasons this jurist deserves to be confirmed.

Contributing Editor Jonathan H. Adler is associate professor and associate director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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