Judicial activism with a twist
by digby
Greg Sargent:
To the fainting couch! Obama attacked the Supreme Court and threatened it with a backlash, should it strike down his tyrannical scheme to impose a government takeover of health care on the nation!
That’s what many conservative writers and even some centrist ones are arguing. They are saying that Obama’s words about the Court yesterday were “unsettling” and a “witch-hunt,” and they’re likening them to F.D.R.’s efforts to pack the Court in retaliation for decisions striking down New Deal initiatives.
Ok, I give up. These people are now openly defending the Court against accusations of judicial activism?
I'm just going to print here the definition of judicial activism at the "Conservapedia"
"Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary.
In this regard, judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate.
Courts in California — both state and federal ones — frequently engage in judicial activism. One major example of this is the relatively recent California Supreme Court decision In re Marriage Cases, wherein four California Supreme Court justices (who are appointed, not elected) unilaterally overruled the will of the people of the state of California, and legalized gay "marriage." Proposition 22, which recognized the traditional definition of marriage had previously been put in place by a majority of California voters, but this did not deter the liberal judges of the court from acting. In response, a majority of California voters passed Proposition 8, which amended California's Constitution to uphold the sanctity of marriage, stemming the tide of the liberal homosexual assault on marriage before it was too late.
Judicial activism should not be confused with the courts' Constitutionally mandated rule in enforcing limitations on government power and preserving the Constitutional structure of government, as they did in Bush v. Gore, Boy Scouts v. Dale, and D.C. v. Heller.
Examples of judicial activism:
Griswold v. Connecticut - 1965 Supreme Court ruling establishing a constitutional right to posess, distribute and use contraception.
Roe v. Wade - 1973 Supreme Court ruling establishing a constitutional right to abortion.
Lawrence v. Texas - 2003 Supreme Court ruling establishing a constitutional right to sodomy.
They left out the original sin of liberal judicial activism --- the one that caused all the hoopla to begin with --- Brown vs board of education:
In fact, the Republican presidential candidates don't seem to have gotten the word --- they're still out there running against the judicial activists in the federal courts.
None of this is to say that liberals are any less inconsistent when they attack the Court for judicial activism. But you can't really blame them. The Republicans are the ones who turned this meme into a rallying cry a long time ago. They're just appropriating it. And truthfully, liberals favor federal government so a court that challenges states' rights and defends civil liberties, as the Warren Court did, isn't quite as inconsistent as the wingnuts who bellowed for years about liberal activist judges now defending the federal courts. But I admit, it's close thing.
The truth is that the Court is inherently political and always has been to lesser and greater degrees. But since the left is the faction in America that believes in government activism, progressives should recognize that as long as the conservatives have a 5-4 majority (or worse)the best they can do is hold back the tide through the democratic process and keep them from completely repealing the progress of the 20th century. This court is not going to ever going to be friendly to their agenda.
Unfortunately, the Democratic majority doesn't seem to be inclined to do that. They want to "do things" not stop things so they are eager to enact "Grand Bargains" and "Big Deals" that basically advance the conservative agenda --- which the court will codify.
It's certainly possible that the Court will uphold Obamacare. It was, after all, a pretty conservative plan. But progressives should probably come to terms with the fact that their desire for progress at the federal level is mostly in a holding pattern until this court changes.(There will always be some room for progress --- gay rights, for instance, looks to be one that's transcending ideology.) And they should gird themselves for the fact that it could get even worse if the president is conservative at the time of a new Court vacancy --- or even if the Senate remains in the grip of right wing influence.
Kagan and Sotomayor were both good appointments but they didn't change the ideological bent of the court. The right is not going to allow a liberal majority on the Court any time soon --- and I think they've proven that they will prevent it by any means necessary. They know very well the power they hold with a Court majority and they will protect it from "judicial activism" by any means necessary.
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