Friday, April 16, 2010

The Supremes after Stevens
Tom Smith

Conservatives should not get their hopes up.

I agree with Rosen and Freidman about conservatives' use of "judicial activism" as a pejorative. It's inaccurate and exposes us to charges of hypocrisy.  Personally, I'm all for judicial activism in defense of the Constitution.  Judicial restraint in the face of lawless innovation is no virtue and judicial activism in support of the Constitution is no vice.  You get the idea. I hope a vigorous, judicially active and constitutionally outraged judge declares the individual health insurance purchase mandate unconstitutional, rather than restrainedly and supinely accepting the definition of "commerce" as "stuff" or "everything", and then beats it to death with a big judicial stick in an astonishing display of frenetic judicial activity. I hope they are as active as a sugar-drunk preschool in a fire drill.  Active! Conservatives (which I mean to include libertarians) should do the work of educating the people enough so that one can just stop using "judicial activism" as code for progressive jurisprudence.  "Judicial activism" as a concept tries to lay claim to a specious neutrality.  There's no reason to pretend to be neutral about substantive disagreements about what the Constitutional allows and doesn't, not now anyway, when gloves are off and cats are out of the bag.

It's also too true, I suspect, that the Court kinda sorta follows the election returns, in a very nuanced way of course.  But that may turn out to be a good thing, if people electorally reject the recent turn to the left of the national government.

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Tom Smith


I think the problem with the term "judicial activism" is not that it is somehow _innately_ inaccurate or unfair; on the contrary, the leftists, controlling as they do the terms of the public discourse, have redefined the term so that they can charge conservatives with hypocrisy in their use of the term.

To wit: as originally used, the term "judicial activism" referred not to the mere act of striking down legislation, but to reading meaning into the constitution which was not supported by the text (or history) of the constitution itself. The paradigmatic example is the invention of the "right to privacy" and "substantive due process." Thus, when conservatives complained about, say, Roe v. Wade, their complaint was more over the use of the paradoxical, nonsensical, and invented concept of "substantive due process," rather than the mere fact that SCOTUS was striking down a law as unconstitutional.

But now, liberals have claimed (successfully, apparently) that the foregoing story never happened; that when conservatives decried "judicial activisim," what they were *really* complaining about was the use of judicial review to invalidate governmental legislation or action *at all*. Under this definition, the term "judicial activism" would be a proper label even for Marbury v. Madison. This is, of course, utter nonsense, but it sure helps if you want to charge conservatives with hypocrisy on the issue. After all, conservatives will applaud *some* uses of judicial review to strike down legislation (e.g., D.C. v. Heller), and decry others.

Posted by: Commodore | Apr 19, 2010 6:42:53 AM