WHEN THE RIGHT PUTS ITS SPIN ON JUDICIAL ACTIVISM…. It’s not at all surprising, or even interesting, that George Will would write a column arguing that an individual health care mandate is unconstitutional. It’s curious that Will never came to this conclusion when the mandate was a Republican idea, but let’s put that aside for now.
What is interesting is Will’s attempt to address the concept of judicial activism from the right.
Debates about judicial review concern the propriety and scope of judicial supervision of democracy and involve the countermajoritarian dilemma: How to square the principle of popular sovereignty with the practice of allowing appointed judges, accountable to no contemporary constituency, to overturn laws enacted by elected legislators? […]
When does judicial deference to legislative majorities become dereliction of the judicial duty to discern limits to what majorities are lawfully permitted to do?
The columnist relies on the judgment of Don Willett, a justice on the Supreme Court of Texas, who argued, “There is a profound difference between an activist judge and an engaged judge.”
Will added, “The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary’s duty to declare what the Constitution means.”
The phrase “distinction without a difference” comes to mind. Indeed, in Will’s world, it appears “activist” judges are bad because they interfere with policies conservatives like, while “engaged” judges are good for the exact opposite reason.
It’s not exactly a principled approach to modern jurisprudence.
Earlier this year, there were increasingly common criticisms of “conservative judicial activism” in the discourse, with an overabundance of examples of judges on the right, guided solely by ideological goals, making rulings in “an aggressively activist manner.”
E.J. Dionne put it this way: “[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.”
Will almost certainly realizes the political difficulties in undoing the Affordable Care Act, so he’s hoping the courts take matters into their own hands, ignore precedent, and shape policies in ways Republicans prefer.
It’s the very definition of “judicial activism,” and half-hearted attempts to rebrand it as “judicial engagement” is desperate political spin, and rather pathetic spin at that.
This post has been edited to reflect the author’s original intent.