Judicial Activism – Real and Imaginary

It is always interesting, and instructive, to hear how liberals view the term “judicial activism.”

A June 26 New York Times op-ed by conservative Ross Douthat framed the issue.  Douthat writes, “It’s a great pleasure, in this week when the entire political world is hanging on the Supreme Court’s health care ruling, to welcome so many liberals to a cause dear to my heart: The crusade for judicial restraint.”

Putting the subject of judicial activism into context, Douthat explains: “The experience of the civil-rights era taught liberals to regard an aggressive judiciary as their natural ally, and over the ensuing decades the left came to rely on expansive (some might say fanciful) court rulings as a kind of trump card on issues where liberalism had not won public opinion to its side.”

In other words, whatever parts of the liberal agenda could not be achieved through the legislative process, liberals could expect leftist judges to accomplish for them by judicial decree.

Douthat continues, “When conservative intellectuals complained that the Court’s approach to abortion (or civil liberties, or religious expression, or criminal justice… the list was long) amounted to a kind of ‘judicial usurpation of politics,’ liberals rolled their eyes and called the conservatives paranoid.  When right-wing politicians ran too hot in their attacks on liberal judges, liberals often responded with high-minded paeans to the importance of judicial independence.

“This changed only gradually as the influence of Republican appointees inevitably tilted the court rightward.  In the 1990s, liberals sometimes found themselves reaching for conservative-sounding rhetoric about judicial activism to critique court rulings they disliked.  In the wake of the Bush v. Gore decision in 2000, some of them reached for harsher rhetoric still.  But the Court’s swing votes, Sandra Day O’Connor and then Anthony Kennedy, leaned leftward often enough… and on the hottest issues, crucially, from gay rights to Guantanamo Bay… to prevent the traditional liberal deference to the Supreme Court from breaking down entirely.

“Now it has… but the mere possibility that five justices (might have invalidated) part or all of (Obamacare) has persuaded liberals that the Court has become a purely ideological actor, a rogue body unmoored from any cause save partisanship, a crucial participant in what the Atlantic’s James Fallows described as a ‘long coup’ perpetrated by the political right.”

It is particularly instructive that Douthat would cite the Bush v. Gore decision of December 2000… which brought an end to the patently illegal Florida recounts… that liberals most often use to convince themselves that decisions of the Rehnquist court were ideologically driven.  Nothing could be further from the truth.  Had it been possible to poll the members of the court on their level of interest in hearing the case, chances are the justices would have been unanimous.  They would have preferred not to get involved… but for vastly different reasons.

To review what was in dispute, when it appeared that the final results in Florida would show the two sides separated by less than 1% of the vote, Democrats dispatched hundreds of lawyers across the state, asking the courts to disqualify the ballots of overseas military personnel, based on mostly bogus technicalities.  And when that disgraceful effort failed and the Palm Beach County ballots became a major problem, the Gore campaign approached the heavily Democratic Florida Supreme Court to pull their chestnuts out of the fire.

The Florida Supreme Court, with absolutely no jurisdiction in the selection of presidential electors… Article II, Section 1 of the U.S. Constitution vests the state legislatures, and ONLY the state legislatures, with the duty to determine the manner by which each state’s electors are chosen… ordered recounts in only the four most heavily Democratic counties in the state.  The Bush-Cheney campaign, fully aware that the Democrats would be certain to “find” several hundred ballots in the trunk of someone’s car or in a dark recess of a voting machine storage warehouse, took the matter before the U.S. Supreme Court.

Looking at it from the liberal point of view, where the end always justifies the means, it is all but certain that Justices Ginsburg, Breyer, Stevens, and Souter, would have been more than happy to let Florida Democrats work their special magic with the ballots, arguing that a “dimpled” chad was the same as a “hanging” chad, and that “dimpled” chads and “hanging” chads were the same as “cleanly punched” chads… so long as the chads in question were next to Al Gore’s name.

The remaining members of the court, Rehnquist, O’Connor, Kennedy, Scalia, and Thomas… aware that the winning of an election will always trump constitutional principles and the rule of law in the minds of liberals and Democrats… would have preferred not to get involved because they knew that they would be accused of partisanship if they heard the case and decided it based on the “equal protection” provisions of 14th Amendment.

Liberals were convinced then, and it has since become a part of Democratic orthodoxy that, based solely on partisan considerations, the court sided with the Bush campaign to prohibit a recount that would have thrown Florida’s 25 electoral votes to Gore-Lieberman.  In the present case, Douthat tells us that liberals remain convinced that “the Court has become a purely ideological actor, a rogue body unmoored from any cause save partisanship…”

As silly as that might sound, what it tells us is that any decision by the court that is inconsistent with the liberal view of federal-state relations must be, by definition, ideologically motivated.  It totally ignores the possibility that the conservative members of the court might actually attach some importance to the limitations of federal power outlined in the 10th Amendment.

Douthat reports that others “have cast around for reforms that might limit the influence of the court’s current right-leaning majority: a big expansion in its membership, term-limits for the justices, or even a 6-3 supermajority requirement for overturning an act of Congress.”

An FDR-style expansion of the court to 11 members would be just fine with liberals, but only in the event that a Democrat would have the opportunity to appoint a liberal to the Ginsburg seat and two additional liberals to the expansion seats for a reliable 6-5 liberal majority.  To suggest to them that a Republican president might be able to appoint a conservative to replace Justice Ginsburg and two additional strict constructionists to the expansion seats, for a reliable 7-4 conservative majority, would cause them to immediately discard the idea.

What it all boils down to is that, when liberal justices manufacture new rights out of thin air to benefit a voting constituency important to Democrats, it is only because the Constitution is a “living document” which must evolve with the times.  However, when conservative justices honor their commitment to the actual written word of the Constitution, in support of conservative ideals, liberals can always be expected to see a partisan motivation behind the decision.

In his June 28 op-ed in the Washington Post titled “Why Roberts Did It,” the normally reliable Charles Krauthammer argues that Roberts voted with the court’s liberals “because he carries two identities.  Jurisprudentially, he is a constitutional conservative.  Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.”

In writing for the majority in the Obamacare decision the chief justice wrote, “… we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

So there you have it.  Krauthammer believes that the Chief Justice is not only the leader of the high court, he is also its PR flack who sees it as his job to punish us because a majority of the American electorate was dumb enough to elect Barack Obama and a Democrat-controlled Congress.  If he is correct, then we have the greatest anomaly of all time on our hands because Roberts has succeeded in accomplishing precisely that which he sought to avoid.  In ruling as he did, he has destroyed forever any faith the American people might have in the one institution that was designed to stand between the rule of law and the barrel of a gun.

Justices of the Supreme Court receive lifetime appointments.  The Founders designed the court in that way so as to insulate the court from political pressure.  But if Roberts truly sees his job as Krauthammer describes it, he should resign immediately so that we can begin the long and painful task of repairing the damage he has done to our republic.

If the United States Supreme Court can be manipulated by liberal Democrats and the mainstream media, then what took George W. Bush so long to identify a replacement for William Rehnquist?  If all we needed was a PR flak to uphold the court’s reputation in the eyes of liberals, he could have nominated almost any inside-the-beltway political hack who would do almost anything for a buck.  Jack Abramoff was out of a job and looking for something interesting to do.  He would have been perfect for the job.


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