February 3, 2011

The Hypocrisy of Judicial Activism

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In 1994, Rush Limbaugh went on-air and proclaimed the “Thirty-Five Undeniable Truths of Life.” This intellectual tour de force included such choice insights as “Feminism was established so as to allow unattractive women access to the mainstream of society” and “Condoms only work during the school year.” While any one of Rush’s absurd “truths” could provide fodder for a legal column, this column focuses on number 26: “Liberals attempt through judicial activism what they cannot win at the ballot box.”

Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.” It has been a rallying cry for conservatives since the Supreme Court struck down state laws that established segregated schools in the South. Angry voices on the right blamed judicial activism when the Court ruled against them on school prayer, contraceptives, interracial marriage and abortion. The phrase has become a Republican mantra at confirmation hearings for Supreme Court nominees and gets conservatives more excited than a reality game show featuring NASCAR, deer hunting, Sarah Palin and the Octagon.

For nearly 60 years, conservatives have successfully stuck to their talking points — liberal judges make law from the bench and undermine the value of democracy, while conservative judges follow the Constitution and objectively interpret the law. While Democrats were off saving whales and scalping Lilith Fair tickets, Republicans stole the issue and made it theirs. The simplicity and effectiveness of this public relations campaign is enough to make Don Draper drool with envy. But there is a fundamental problem with the assertion that liberal judges are demons in black robes ravaging the memory of our founding fathers, while their conservative colleagues are shining knights guarding the Constitution’s chastity. It is just not true. Although Republicans have successfully popularized judicial activism as an exclusively liberal phenomenon, both liberal and conservative judges dabble in the dark art of the two-word slur. Conservatives are just winning the message war. Strike that. In the message war, conservatives are destroying liberals worse than tanning beds are destroying John Boehner’s skin.

Over the last decade, the Supreme Court handed down a number of controversial decisions overturning laws passed by democratically elected legislatures. The Court, which has shifted markedly towards the right in recent years, has decided that corporations possess the same First Amendment rights as individuals to make campaign contributions, that states cannot restrict the individual right to possess a firearm for private use and that, essentially, George W. Bush won Florida in the 2000 election. Yet, these decisions are not the product of some left-wing Ivy League conspiracy to overturn the will of “true” Americans. They are about as liberal as a Glen Beck sitting on a horse while draped in the American flag, smoking a Marlboro Red and giving you those crazy eyes from underneath his cowboy hat. So how did the Supreme Court find a way to overturn two laws passed by elected representatives of the people, extend First Amendment protection to big business, wildly expand the scope of the Second Amendment and determine the winner of a national election? Two little words come to mind.

The saga continued last Monday when Judge Roger Vinson became the second federal district court judge to rule against the “Patient Protection and Affordable Care Act” (otherwise known to you Fox News fans as “Obama’s Communist-Socialist Plot to Kill Your Grandmother”). Last December, a federal judge in Virginia struck down the health care law’s individual mandate provision that requires every person to purchase health insurance by 2014. The Virginia judge followed the set legal doctrine that if a law contains an unconstitutional provision that can be separated from the rest of that law, only the unconstitutional provision should be invalidated leaving the rest of the statute in tact. Yet, unlike the first federal judge to rule on “Obamacare,” Judge Vinson abandoned the principle of severability and invalidated the entire statute on constitutional grounds.

While Tea Partiers were probably popping more bottles last Monday than Lil Wayne on his prison release date, fans of the health care law can cling to the fact that the judicial scoreboard is currently tied. Two federal judges, Clinton appointees, have upheld the statute’s constitutionality and two others, Reagan and W. appointees, have not. Eventually, the fate of our health care system will land in the lap of the Supreme Court. The Court is currently made up of four reliable liberal votes, four reliable conservative votes, and one guy who just looks at the ceiling and votes. That guy, the one looking at the ceiling, will likely decide the direction of our heath care system for generations. I wonder if he will be another judicial activist?

Chris Austin is a second-year law student at Cornell Law School. He can be reached at [email protected] Barely Legal appears alternate Fridays this semester.

Original Author: Chris Austin