It is always interesting, and instructive, to hear how liberals view the term \u201cjudicial activism.\u201d<\/p>\n
A June 26 New York Times<\/em> op-ed by conservative Ross Douthat framed the issue.\u00a0 Douthat writes, \u201cIt\u2019s a great pleasure, in this week when the entire political world is hanging on the Supreme Court\u2019s health care ruling, to welcome so many liberals to a cause dear to my heart: The crusade for judicial restraint.\u201d<\/p>\n Putting the subject of judicial activism into context, Douthat explains: \u201cThe 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.\u201d<\/p>\n 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.<\/p>\n Douthat continues, \u201cWhen conservative intellectuals complained that the Court\u2019s approach to abortion (or civil liberties, or religious expression, or criminal justice\u2026 the list was long) amounted to a kind of \u2018judicial usurpation of politics<\/a>,\u2019 liberals rolled their eyes and called the conservatives paranoid. \u00a0When 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.<\/p>\n \u201cThis changed only gradually as the influence of Republican appointees inevitably tilted the court rightward. \u00a0In the 1990s, liberals sometimes found themselves reaching for conservative-sounding rhetoric about judicial activism to critique court rulings they disliked. \u00a0In the wake of the Bush v. Gore decision in 2000, some of them reached for harsher rhetoric still. \u00a0But the Court\u2019s swing votes, Sandra Day O\u2019Connor and then Anthony Kennedy, leaned leftward often enough\u2026 and on the hottest issues, crucially, from gay rights to Guantanamo Bay\u2026 to prevent the traditional liberal deference to the Supreme Court from breaking down entirely.<\/p>\n \u201cNow 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\u2019s<\/em> James Fallows described as a \u2018long coup<\/a>\u2019 perpetrated by the political right.\u201d<\/p>\n It is particularly instructive that Douthat would cite the Bush v. Gore decision of December 2000\u2026 which brought an end to the patently illegal Florida recounts\u2026 that liberals most often use to convince themselves that decisions of the Rehnquist court were ideologically driven.\u00a0 Nothing could be further from the truth.\u00a0 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.\u00a0 They would have preferred not to get involved\u2026 but for vastly different reasons.<\/p>\n 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.\u00a0 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.<\/p>\n The Florida Supreme Court, with absolutely no jurisdiction in the selection of presidential electors\u2026 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\u2019s electors are chosen\u2026 ordered recounts in only the four most heavily Democratic counties in the state.\u00a0 The Bush-Cheney campaign, fully aware that the Democrats would be certain to \u201cfind\u201d several hundred ballots in the trunk of someone\u2019s car or in a dark recess of a voting machine storage warehouse, took the matter before the U.S. Supreme Court.<\/p>\n 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 \u201cdimpled\u201d chad was the same as a \u201changing\u201d chad, and that \u201cdimpled\u201d chads and \u201changing\u201d chads were the same as \u201ccleanly punched\u201d chads\u2026 so long as the chads in question were next to Al Gore\u2019s name.<\/p>\n The remaining members of the court, Rehnquist, O\u2019Connor, Kennedy, Scalia, and Thomas\u2026 aware that the winning of an election will always trump constitutional principles and the rule of law in the minds of liberals and Democrats\u2026 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 \u201cequal protection\u201d provisions of 14th<\/sup> Amendment.<\/p>\n 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\u2019s 25 electoral votes to Gore-Lieberman.\u00a0 In the present case, Douthat tells us that liberals remain convinced that \u201cthe Court has become a purely ideological actor, a rogue body unmoored from any cause save partisanship\u2026\u201d<\/p>\n 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.\u00a0 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<\/sup> Amendment.<\/p>\n Douthat reports that others \u201chave cast around for reforms that might limit the influence of the court\u2019s current right-leaning majority: a big expansion in its membership<\/a>, term-limits for the justices, or even a 6-3 supermajority<\/a> requirement for overturning an act of Congress.\u201d<\/p>\n 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.\u00a0 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.<\/p>\n 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 \u201cliving document\u201d which must evolve with the times.\u00a0 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.<\/p>\n In his June 28 op-ed in the Washington Post titled \u201cWhy Roberts Did It,\u201d the normally reliable Charles Krauthammer argues that Roberts voted with the court\u2019s liberals \u201cbecause he carries two identities.\u00a0 Jurisprudentially, he is a constitutional conservative.\u00a0 Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court\u2019s legitimacy, reputation and stature.\u201d<\/p>\n In writing for the majority in the Obamacare decision the chief justice wrote, \u201c\u2026 we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation\u2019s 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<\/em>.\u201d<\/p>\n So there you have it.\u00a0 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.\u00a0 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.\u00a0 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.<\/p>\n Justices of the Supreme Court receive lifetime appointments.\u00a0 The Founders designed the court in that way so as to insulate the court from political pressure.\u00a0 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.<\/p>\n 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?\u00a0 If all we needed was a PR flak to uphold the court\u2019s 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.\u00a0 Jack Abramoff was out of a job and looking for something interesting to do.\u00a0 He would have been perfect for the job.<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" It is always interesting, and instructive, to hear how liberals view the term \u201cjudicial activism.\u201d A June 26 New York Times op-ed by conservative Ross Douthat framed the issue.\u00a0 Douthat writes, \u201cIt\u2019s a great pleasure, in this week when the … Continue reading