When I started this “Blawg” I indicated that I would leave the analysis of Supreme Court of Virginia Opinions to my friend Steve Emmert, and I have mostly done so. I did say, however, that I would occasionally comment on cases of particular interest or import, and I think today’s decision in City of Charlottesville v. Payne, the litigation over Charlottesville’s decision to remove statues from and rename parks dedicated to Generals Lee and Jackson is just such an occasion. I have already seen more than few comments on news websites condemning the decision as judicial activism, which it is most certainly not. My commentary will be directed to those who believe that it is and, hopefully, I can explain to those who are willing to receive such explanation and stumble across my words, why.
You may have noticed that I have not said what the Court decided or how it reached that decision – and in fact, I do not intend to do so. By now you have undoubtedly read news stories reporting the result – and fumed or cheered. As my stated purpose is not to defend the decision, but to explain why it is not a case of judicial activism, the Court’s decision is, in fact, irrelevant.
The phrase judicial activism appears to have been coined by the American historian Arthur M. Schlesinger, Jr., in a 1947 article in Fortune. For Schlesinger, judicial activism was simply the willingness of a judge or multi-judge court to use constitutional review to invalidate legislative or executive action. In Schlesinger’s view, this was neither a good thing nor a bad thing, it was simple the jurisprudential method of certain judges.
As a form of jurisprudence, activism is simply the antonym of restraint. It is not pejorative, and studies suggest that it does not have a consistent political valence. Both liberal and conservative judges may be activist in this sense, though conservative judges have been more likely to invalidate federal laws and liberals more likely to strike down those of the states.
I will not, however, confine my discussion to this academic definition. Rather, it is my contention that judicial activism as used in modern discourse has taken on a broader, and decidedly pejorative, meaning and is almost always associated with the actions of judges viewed to on the left end of the political spectrum, and more frequently against judges of known conservative views when their ruling run contrary to accept conservative dogma. In a sense, the term as come to be synonymous with the accusation that a court is usurping the proper function of the elected branches by “legislating from the bench.” It is this definition that I have seen applied to Payne (though Payne is the correct short form of the case, I predict that the decision will be popular called City of Charlottesville going forward).
So, how is it that Payne is not judicial activism in this sense? That is easy to explain. To legislate from the bench, a Court must say that a statute does not say what it plainly does, but something else entirely. In Payne, the unanimous court (a point that I will come to shortly) does the exact opposite. The Court says that Code §§ 15.2-1812 and -1812.1 must be read exactly as written by the General Assembly and interpreted using the rules of construction that were and are well known to the legislature. Those rules require the courts to give the words of statutes: 1) their plain and ordinary meaning, 2) to add nothing to those words nor take any words out, and 3) to not consider anything but the statute (and related statutes, for example definitional sections. There is also one other particularly important rule: all statutes are presumed to be prospectively applied, that is only to actions that occur after their enactment, and not retrospectively unless there is express language in the statute which directs otherwise.
This last rule is what makes Payne decidedly not judicial activism. The relevant code sections were enacted in 1997. Prior to that date, there was no specific legislation that authorized the building of war monuments by local governments and likewise no statute about removing such monuments by cities (there was a different statute that applied to counties, but that statute does not apply because the locality here is a city). In drafting and passing this new legislation, the General Assembly grants the authority to erect such monuments and thereafter not to disturb them. In doing so, all the language of the statutes clearly speaks to future actions by local governments. Nowhere in the statutes is anything said about monuments existing prior to the enactment of the new law.
The principal accusation made by those asserting that this interpretation amounts to judicial activism assert that regardless of the absence of language of retrospective application in the legislation, because it was proposed and passed by a legislature control by the Republican Party and signed into law by a Republican governor, the clear intent was to have the law apply to existing monuments honoring the military heroes and fallen martyrs of all wars (but especially the War Against Northern Aggression). And therein lies the rub – even assuming – even conceding – that this was the intent of the proponents of the legislation, courts are not permitted to interpret laws based on the intention of the those who drafted them, but only on what they wrote.
While the Court concedes that the statute “could be clearer,” there is simply no question that had the legislature intended for the new code to apply to existing statutes, monuments, and the like, it could have done so by adding language that made the law apply retrospectively. Although the statute does not expressly say that it applies only to new monuments, there is language which clearly contemplates that the localities “may” do so, not that they “already have done so.”
Now let me turn to an issue alluded to earlier – that this is a unanimous decision. The opinion was authored by Justice Bernard Goodwyn, and several of the comments criticizing the opinion are directed at Justice Goodwyn’s reputation as a liberal (and not a few of these make veiled or even direct references to his race being a factor in the result of “his” opinion). But it is not “his” opinion. It is the opinion of all seven active members of the Court.
If one were foolhardy enough to engage in the labeling of members of the Court by political persuasion, it would be fair to say that Justice Goodwyn is of a liberal mindset as is Justice Cleo Powell; if there is a centrist member of the Court, it is Justice William C. Mims; but the remaining four Justices are most decidedly conservative in background and judicial temperament. Chief Justice Donald Lemons, and Justices Kelsey, McCullough and Chafin have impeccable credentials as jurists with a restraint as their watchword. The idea that somehow all four of these Justices would join this opinion if it had any taint of activism or judicial legislating is risible. Quite the contrary, I am persuaded that they joined the opinion precisely because it used traditional, and restrained, rules of statutory interpretation to apply the law as written.
Had an opinion be drafted reversing the judgment in Payne on the ground that “removal of the statues is the right thing to do, the law be damned,” that would have been judicial activism and I seriously doubt any member of the Court would have even considered drafting such an opinion.
So, you may not like the result, but if so, do not accuse the Court of activism or “intellectual dishonesty.” If you want someone to blame, go to the archives and look up the names of the legislators who proposed the legislation (though they most certainly didn’t draft it – a mundane task that is always left to staff), review its history in the legislature. You will likely find that the legislation was not studied intently – I would be willing to wager than the majority of those who vote for and against it never bothered to read its text. Unlike the Court, they were content to “assume” the law said what its proponents intended it to, which I concede was to protect all monuments on public ground honoring the participants in America’s wars – but especially the Civil War. But the Court cannot assume, it must read the law and it must apply it as written – even when badly written.