The phrase ‘judicial activism’ is tossed about by Faux News and conservative politicians as a blight on judges who, according to these sources, blatantly ignore the constitution and decide cases based on their own sense of right and wrong. Their reasoning goes something like this; Nowhere in the U.S. constitution do the founding fathers mention that ‘privacy’ is a guaranteed right. Therefore, the Supreme Court decision (Roe v. Wade) that upheld the right of a woman to decide (with her physician) whether or not an abortion for her was appropriate constitutes ‘judicial activism.’ In this context, judicial activism is the tendency to interpret the Constitution or law in a way that goes beyond the founding fathers’ intent, in order to influence public policy. The decision in Griswold v.Connecticut, almost a decade earlier than Roe, acknowledged the implicit constitutional right of privacy and allowed a woman, rather than the state, to determine whether her use of oral contraceptives was appropriate for her. Griswold and the Supreme Court decision in Brown v Board of Education (1954) which eliminated racial segregation in public education are often cited by conservatives as impermissible judicial activism. Thus, the phrase is used by conservatives to label judges and judicial candidates as unfit for office because the founding fathers evinced no intent consistent with these decisions. Of course, oral contraceptives were not in existence in the late 18th century and blacks were considered only three fifths of a person.
It is within this context that the hypocrisy of the present Supreme Court comes to light. It is currently considering a case (Selby v. Holder) brought by the State of Alabama challenging Section 5 of the Voting Rights Act with regards to constraints placed on that state in making changes in elections which could effectively prevent blacks from exercising their constitutional right to vote. Congress has renewed the voting Rights Act four times since its original enactment in the 1960s. In 2006 the renewal was nearly unanimous in both houses. During oral argument, that darling of the Tea Party, the arrogant self-proclaimed genius on the Court, Justice Scalia described Section 5 as a “perpetuation of racial entitlement.” Oh really? How can a constitutional right to vote be considered an entitlement in any way other than by perverse judicial activism disregarding totally the enactments of the 14th and 15th amendments to the U.S. constitution as well as nearly 150 years of Supreme Court precedent? As Justice Breyer asked during oral argument “What do you think the Civil War was about?” Furthermore, how can a Supreme Court justice totally disregard the will of the people as exercised by those charged with the responsibility of expressing that will (Congress)? I predict that the current Supreme Court, following Scalia, will do precisely all of these things. Judicial activism indeed!
Just saying . . .