Friday, April 16, 2010
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.