Judicial Activism 101
Further to John's excellent post below, the Wall Street Journal has an editorial today correctly lambasting Senate Democrats for their bizarre tactic of using the Kagan hearings to criticize the Roberts Court. The new Democratic mantra is that the Roberts Court is an "activist" court because it has overturned earlier precedents.
For you non-lawyers who may need to explain this to our liberal friends, here's what Senate Democrats just can't get through their heads. "Overturning precedent" is not the measure of an activist court. "Activism" has to do with judges taking liberties with written laws, be they statutes or the Constitution. When judges insert their own policy preferences into the law, they usurp the function of the political branches and "legislate from the bench."
A conservative court will overturn precedents whenever necessary to correct earlier decisions that play fast-and-loose with the text of a statute or the Constitution. That's not activism, it's simply respect for the law. Professors Yoo & Epstein: over to you!
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Comments :
Jun '10
Re: Judicial Activism 101
I'm not sure I want to correct the Left when they misuse the term, though.
It makes for some great laughs.
May '10
Re: Judicial Activism 101
We'll see which definition wins out in the coming decades. Progressives have had great success controlling language and debate in our culture. Republicans too often let themselves get suckered into playing defense.