The threat of judicial activism

by John Nowacki
web posted December 18, 2000

Suddenly, the liberals have discovered judicial activism.

Liberals have always treated the notion that judges can and do make up the law rather than interpret it in accordance with the meaning of its text as something of a myth, a bogeyman created by conservatives to justify keeping progressive types off the bench. At judicial nominations hearings in the U.S. Senate, you might occasionally hear a liberal mention "so-called judicial activism" in a dismissive way, with the Senator knowing her derisive tone is unmistakable. From time to time, liberals refer to the concept of judicial activism in print, but always with a sense of quotation marks around the phrase. For them, the law -- the Constitution in particular -- is meant to evolve with our changing standards, and so a judge who injects his personal "perspective" into the mix is merely breathing life into the law.

Which makes the recent criticism of the U.S. Supreme Court all the more remarkable. After its two opinions and stay order in the Florida election cases, the Left has turned on the Court with a vengeance and roundly condemned it for engaging in judicial activism. Not only are liberals biting the hand that feeds them, they are attacking it for allegedly doing something that almost always works to their benefit.

It is true that, for the most part, the Supreme Court is an activist court -- one has only to look at a few recent cases to see that. Just last term, for example, the Court ruled that a state law banning a specific type of abortion -- partial birth -- was too broad and unconstitutional, while ruling that a state law banning certain general types of speech near a building that housed a health care facility -- never mind whether it was a dentist's office or an abortion clinic -- was narrowly tailored and constitutionally sound. All on the same day, all to protect abortion, and all activist; the deck was stacked, as one Justice put it. But that wasn't the case in the Court's decisions over the past week or so.

Of course, it would be too much to expect liberals to acknowledge the existence of judicial activism and to define it correctly. It is one thing to legislate from the bench, as the Supreme Court of Florida has done, repeatedly. It is quite another to reverse an activist decision when it does not comport with the law, as the U.S. Supreme Court has done. That distinction, however, is ignored by the Court's liberal critics, who look to results and not the process of following the law when evaluating the Court's decisions.

One good thing to come out of this whole mess is an increased awareness among conservatives of the problem judicial activism presents. Conservatives have seen up close what kind of havoc an activist court like the Florida Supreme Court can wreak. Judicial activism-real judicial activism-is a threat to our republican form of government, as they have been saying for years. With these recent examples of both activism and restraint on the bench serving as a reminder, conservatives should be more energized than ever to press for the appointment and confirmation of restrained judges in the Bush administration.

Liberals may suddenly be complaining about judicial activism, it's true. But when you get down to it, and you're talking about a genuine activist decision, you can bet they'll go back to denying that judicial activism even exists.

John Nowacki is deputy director of the Free Congress Foundation's Center for Law and Democracy.

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