Friday, April 30, 2010

Activist judges

President Obama:
“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,” Mr. Obama said.

“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.”

Sorry Mr. President, but you apparently have no idea what an activist judge is. An activist judge is not someone who goes against public opinion or Congress, but rather someone who makes up or invents the law out of whole cloth in order to advance an ideological agenda. I think wikipedia has a useful definition:
Judicial activism is a political term used to describe judicial rulings that are suspected to be based upon personal and political considerations other than existing law.
This is exactly right. Scrutinizing and overturning legislation from Congress which does not comport with our Constitution, even if it is wildly popular among the people, is not only not wrong (double negative? sorry), it is one of the judiciary branch's most fundamental roles. Most of us learned about the concepts in middle school as the system of checks and balances. How does President Obama, a Harvard law graduate, not understand this?

I think what is rather transparently taking place here is an attempt by the President to redefine what judicial activism is, so that he can level the charge against the conservative Supreme Court should it -- correctly -- overturn parts of his agenda as unconstitutional. It's also significant that the President declined to name any specific court cases where the judicial branch may have overstepped its bounds in the 1960s and 70s. I await further clarification with bated breath.

Unsurprisingly some on the political left were a bit concerned with Obama's remarks:
That troubled some liberals, including Wade Henderson of the Leadership Conference on Civil and Human Rights. He agreed with Mr. Obama’s definition of “judicial activism,” but said he had “a concern about his effort to establish a moral equivalency between the Warren court and the Roberts court.”

And the president of the liberal Alliance for Justice, Nan Aron, argued that the Warren and Burger courts had helped make progress on economic and social fronts for people who lacked political power, while the Roberts court is “tilted in favor of those who already have power and influence.”
Henderson's mindset here is obvious: judicial activism is good when we do it, but bad when the political right does it. Aron's stance, meanwhile, makes a mockery of Lady Justice, who stands blindfolded and impartial towards whether one is rich or poor, powerful or weak. Aron, like many of his liberal brethren, simply see the courts as another avenue (or the preferred avenue, as the will of the people is not required) of imposing their social engineering schemes on society. Such as the mental contortions and inconsistencies of leftist philosophy.

Related: Thoughts from the Cato Institute's Roger Pilon.

Update: Comments from Damon Root here.

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