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What Would Happen if Rightwingers Who Scorned Activist Judges Had to Rely On…Activist Judges |
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Rightwingers love to complain about activist judges, who they say are always subverting the will of the people. Never mind that “judicial activism”, the principle that judges have the duty to apply the Constitution to strike down unconstitutional laws, dates back to the Marbury v. Madison decision in 1803 (who knows, maybe Chief Justice Marshall was secretly a socialist Obama supporter). To the right wing, when judges protect individual rights by invalidating the illegitimate acts of elected officials or the illegal actions of law enforcement authorities, they are being undemocratic.
A question comes to mind: if a judge strikes down government action in order to uphold the rights of a right-winger, is that judicial activism? That question is worth asking as rightwingers are breathlessly claiming that a new Department of Homeland Security report warning of “right wing extremist activity” may mean that the federal government will be sending spies to the moronic “tea parties” set to take place tomorrow.
There’s no actual reason to believe that there will be government spies at the faux tea parties, but if it happened, who would right wingers turn to? Or maybe they think constitutional rights simply enforce themselves.
Are you sure this is what is meant by `activist judges` when the term is used by the right wing? My understanding of the term has always been “a judge who strikes down laws, not because they are in conflict with the Constitution as written, but because he disagrees with them (and then massages the Constitution to fit)”. In other words, the opposite of Strict Constructionism, when appplied to constitutionality questions. Since that particular flag is one waved quite a lot, and anyway the right wing has done its share of striking down laws when the left wing was last in power…
I think that is probably how right wingers would describe judicial activism, but I disagree with the premise (I know you may too, don’t mean to attack you). I think whether a law is constitutional is usually in the eye of the beholder. The Constitution doesn’t come with instructions or definitions–terms like “free speech”, “free exercise of religion”, “due process”, etc. are vague, ambiguous, and lend themselves to different interpretations by different justices. I think that’s unavoidable. I think criticizing a decision as “activist” simply means one disagrees with the result. My point is that, if you accept the principle of judicial review, as used since Marbury, then you have to accept the reality that different judges will have different views about which laws are constitutional. Those views can change over time–e.g. from Plessy to Brown, from Bowers to Lawrence.