Don’t Really Need To Read It Now…

1 comment July 9th, 2007at 07:33am Posted by Eli

The blurb says it all:

Conservatives have forgotten that they are opposed to judicial activism.

I went ahead and read it anyway, and there was some good stuff in there:

The Supreme Court told Seattle and Louisville, and hundreds more cities and counties, last month that they have to scrap their integration programs. There is a word for judges who invoke the Constitution to tell democratically elected officials how to do their jobs: activist.

President Bush, who created the court’s conservative majority when he appointed Chief Justice John Roberts and Justice Samuel Alito, campaigned against activist judges, and promised to nominate judges who would “interpret the law, not try to make law.” Largely because of Chief Justice Roberts and Justice Alito, the court has just completed one of its most activist terms in years.

The individuals and groups that have been railing against judicial activism should be outraged. They are not, though, because their criticism has always been of “liberal activist judges.” Now we have conservative ones, who use their judicial power on behalf of employers who mistreat their workers, tobacco companies, and whites who do not want to be made to go to school with blacks.


The school integration ruling was the most activist of all. The campaign against “activist judges” dates back to the civil rights era, when whites argued that federal judges had no right to order the Jim Crow South to desegregate. These critics insisted they were not against integration; they simply opposed judges’ telling elected officials what to do.

This term, the court did precisely what those federal judges did: it invoked the 14th Amendment to tell localities how to assign students to schools. The Roberts Court’s ruling had an extra fillip of activism. The civil rights era judges were on solid ground in saying that the 14th Amendment, which was adopted after the Civil War to bring former slaves into society, supported integration. Today’s conservative majority makes the much less obvious argument that the 14th Amendment protects society from integration.


The conservative activism that is taking hold is troubling in two ways. First, it is likely to make America a much harsher place. Companies like Philip Morris will be more likely to injure consumers if they know the due process clause will save them. Employees will be freer to mistreat workers like Lilly Ledbetter, who was for years paid less than her male colleagues, if they know that any lawsuit she files is likely to be thrown out on a technicality.


The other disturbing aspect of the new conservative judicial activism is its dishonesty. The conservative justices claim to support “judicial modesty,” but reviews of the court’s rulings over the last few years show that they have actually voted more often to overturn laws passed by Congress – the ultimate act of judicial activism – than has the liberal bloc.

It is time to admit that all judges are activists for their vision of the law. Once that is done, the focus can shift to where it should be: on whose vision is more faithful to the Constitution, and better for the nation.

The anti-“judicial activism” Republicans are hypocrites, Roberts and Alito are liars, and the Democrats who voted to confirm them are fools.

Entry Filed under: Constitution,Judiciary,Republicans

1 Comment

  • 1. Multi Medium » The &hellip  |  July 9th, 2007 at 11:47 am

    […] thing we have a Supreme Court with a healthy respect for precedent, eh? The issue of executive privilege is now dead in the water. There is no circumstance under which […]

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