What the Heck is Judicial Activism?
If a conservative friend of yours drops lines into your conversations like "judicial restraint," "judicial activism," or "legislatating from the bench," ask her or him to define these terms. Push for precision. Then run some recent decisions by the current right-wing Supreme Court by her or him and ask if they count as "judicial activism."
I am confident that you will both agree that the current Court is about the most activist court in American history. That's not a value statement. I have other, perjorative value statements to make about this Court. No, I just think it's important for everyone to realize that when conservatives use this language they are being blind to the real situation and willingly ignorant about how law works.
President Bush demonstrate his usual capacity for double-speak last night when he praised Judge John Roberts as a jurist who would "not legislate from the bench." As note on this blog and more extensively in Keck, THE MOST ACTIVIST SUPREME COURT IN HISTORY (mandatory reading during the confirmation hearings), the Rehnquist Court does nothing but "legislate from the bench" with Justices Thomas and Scalia being the most active judicial legislators. Consider the numerous areas in which they impose or would impose limits on state and federal officials.1. They insist most campaign finance laws are unconstitutional.
2. They insist that most regulations of advertising are unconstitutional.
3. They insist that state legislatures can do little to protect abortion clinices from organized mayhem.
4. Thomas has suggested that elected officials have very limited capacity to regulate handguns.
5. They would use the fifth amendment to dramatically limit the capacity of local legislatures to pursue urban redevelopment.
6. They regard the fifth amendment as also limiting environmental regulations and limiting conditions that local legislatures can attach to private development.
7. They insist that affirmative action is unconstitutional, even though the persons responsible for the equal protection clause passed numerous laws providing special benefits to persons of color.
8. They insist on sharp limits on federal power to remedy 14th amendment rights, insisting for example that Congress may not punish rape or even pass laws ensuring that state courts are accessible to the handicapped.
9. They believe that states have an unenumerated right not to be sued, unless the law is a legitimate application of the 14th amendment (but see 8).
10. They believe that states employees have an unenumerated right not to help implement federal laws, even though the first congress repeatedly so conscripted state officials.
11. It is highly probably they believe that many federal spending programs are unconstitutional.
12. They insist that government officials must allow religious groups access to schools and programs aimed at securing secular goals.The crucial points are, first, that no respectable historian believes that this catalogue of constitutional limitations reflect the original meaning of the constitution, and second, that many are, if anything, inconsistent with the constitutional text. Now, if one points out that liberal activism is no more rooted in text or history, fair enough. But the debate over John Roberts ought to be whether we want a conservative activist, who will legislate from the bench in ways approved by President Bush and his most conservative supporters.
If your conservative friend STILL won't concede that these guys are activist radicals, then ask where in the Constitution does it say that federal courts have jurisdiction over the vote-counting process in individual states. Ask how in the world a Court busy "restraining" itself could possibly justify appointing a president over the wishes of the American electorate and in direct violation of Florida law.
That should be fun.