PUTTING CONSERVATIVE JUDICIAL ACTIVISM ON THE RADAR…. It’s always a challenge introducing a new idea — no matter how accurate — into the political bloodstream, but I’ve been encouraged by the recent talk about conservative judicial activism.
University of Chicago law professor Geoffrey Stone recently had a terrific NYT op-ed on the subject of judicial philosophy, which emphasized a key observation:
[I]t should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.
[I]t should become clear that the danger of judicial activism now comes from the right, not the left. It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies in areas such as pay discrimination, school integration, antitrust laws and worker safety regulation. […]
In granting corporations an essentially unlimited right to spend money to influence the outcome of elections [in the Citizens United case], that ruling defied decades of legal precedents and congressional enactments. The non-elected branch of government decided it didn’t like existing legislation, so it legislated on its own.
“This is a very, very activist court, the most activist court in my lifetime. They rewrote the law to say that–so they said that women could be paid less than men. They rewrote the law to say that age discrimination laws won’t apply if corporate interests don’t want them to. They rewrote the law to give ExxonMobil a $2 billion windfall. And they rewrote the law to say that corporations could come in and meddle in elections in this, in this country.”
“It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach.
“What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error. And I think rather than a notion of judicial restraint we should apply both to liberals and conservative jurists, what you’re seeing is arguments about original intent and other legal theories that end up giving judges an awful lot of power; in fact, sometimes more power than duly-elected representatives.”
It’s good to see the issue rise in prominence like this. Here’s hoping it continues.