Monday, August 3, 2009
Let’s talk about judicial activism. The most common point I hear from my self-designated conservative friends is that liberal judges are judicial activists. They charge that such judges flaunt the will of the people by setting aside laws that legislative bodies pass. In other words, according to the contention, judges make law, not interpret law. This term judicial activism is of dubious meaning, at best, and is generally used by conservatives to attack judges whose decisions they do not like. However, by the most common objective criteria — such as a willingness to strike down Congressional laws as unconstitutional — conservative justices are at least as activist as liberals. In the past terms of the Supreme Court, Thomas, Alito and Roberts have set aside more Congressional enactments than any court in the past thirty years. These three make Scalia look like a flaming liberal. From a lawyer's standpoint, there is an even more troubling aspect of this activism reflected in the actions and opinions of the political activisit conservatives on the bench. This group tends to collectively ignore the principle of stare decisis which is the process by which courts look to past decisions to frame the basis for the current issue under question. For example, if it has been decided in several earlier court decisions that the apple is a fruit, when a case comes up in which the Court is reviewing an enactment of Congress which has declared a tax on fruit, stare decisis should prevail in the determination that apples are subject to the tax (i.e., apples are fruit). The conservative wing of the Court would hold, instead, that the apple is a vegetable and therefore not the subject of the tax. There are numerous examples of this disingenuous approach to decision making by Roberts, Thomas and Alito whose activities raise farce to a new level. The rainmakers at Fox News simply have to mouth the term "judicial activist, without any details or facts, to rally the troops against a judicial candidate whose only disqualifications are being non-white, non-Republican and non-male.