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Column: Obama Must Bring 'change' To Court

This story was written by Leslie Small, Daily Collegian


Barack Obama has a big job ahead of him.

In addition to picking a cabinet, getting us out of Iraq and stemming the flow of our bleeding economy, he will likely be faced with replacing at least two Supreme Court justices.

When this happens, I hope he remembers that "legislating from the bench" isn't really so bad.

Despite its repeated promises of equality, civil rights weren't a part of the original Constitution.

The rights many of us now take for granted were only won through years of sweat, blood and tears. And for the rights that are practiced as policy, yet never found their way into an amendment, we have judicial activism.

The idea of judicial activism has gotten a bad rap of late, mostly in the conservative resurgence following the heyday of the Warren Court. Our highest courts were slowly re-filled with judges of the more "constructionist" persuasion that is, those who are hesitant to interpret the Constitution beyond the strict and literal.

To many, a constructionist justice is the right kind of justice. Not only do these judges tend to be more conservative, but there's also a patriotic simplicity in wanting to toe the Constitutional line. Compared to other countries, Americans have an extraordinary deference to our founders, and that's certainly something to be admired.

It's important to remember, though, that the men who penned our Constitution were primarily radical intellectuals the same "elitists" the modern conservative base abhors. It's hard to imagine these argumentative bookworms thinking the guidelines they wrote in the 1780s would have such a strong impact an ever-changing country.

The founders did, however, warn implicitly about the danger of the "tyranny of the majority." We have this idea to thank for the aberration that is the Electoral College, but also for the very existence of a judicial branch. The same traits that make some Americans wary of the Supreme Court appointed members with a lifetime tenure were intended to serve as a check against the ebb and flow of a constant partisan battle.

I imagine it's a difficult job, interpreting a 221-year-old document. Rarely does the founders' intent translate perfectly to a specific case. More rarely still is one important decision likely to make everyone happy. But the satisfaction of the plaintiff or defendant is not nearly as important as the impact of a ruling on the country.

As a people, we are prone to suppressing minorities and waging strong resistance to change. Few can argue that the Brown v. Board of Education was a popular decision at the time -- but it was also sorely needed to work toward the equality our founders promised. Thanks to Brown v. Board, our generation never knew anything but integrated schools, from kindergarten until our enrollment at this public, equal-opportunity university.

Though we may have just elected a black president, it took a tanking economy and eight years of failed Republican policy to do so. If you want further proof that many Americans aren't ready for real equality, look to California's Proposition 8, overturning the state Supreme Court's pro-gay-marriage decision. In a progressive court's attempt to separate religious beliefs from the rights afforded by law, a tyrannical majority hit back with a powerful (and successful) effort to destroy progress.

Was it a good example of representative democracy? Yes. But we have to ask ourselves where we would be now if Alabama had a referendum on the issue of racial integration in 1954.

Sometimes, men and women in robes have to step in to correct injustice when the electorate itself isn't ready to do so. And despite our economic and foreign policy preoccupations, theres still plenty of injustice left to tackle.

I hope Obama, who himself has lived through some of America's most progressive changes, will choose individuals with the audacity to continue this fight Constitutions in hand.

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