Is Judicial Activism from the Right Alright?

For decades conservatives have been assailing the courts for judicial activism, claiming the bench has been shaping or creating laws that override or ignore the intent of state legislatures, Congress and the Constitution. With judicial activism, the courts thwart the power of elected bodies to legislate, by ruling laws unconstitutional. This is the antithesis of judicial restraint, where the Courts accede to the elected branches of the government and uphold the laws they have enacted, giving them the benefit of the doubt when questions have been raised. Critics also note that precedents may be disregarded when the Courts attempt to legislate. However, now that the Supreme Court has tilted to the right, conservative voices are no longer being lifted against recent judicial activism, but praise the Court’s decisions.

A cry against judicial activism came from Southern conservatives when the Warren Supreme Court in a 9-0 landmark decision in 1954, Brown v Board of Education, declared state laws unconstitutional that authorized separate public schools for black and white students. The Court decided that these laws violated the Equal Protection clause of the 14th Amendment. This overturned Plessy v Ferguson which in 1896 had ruled in favor of state supported segregation. Subsequently, in 1973, in Roe v Wade, the Court struck down anti-abortion laws that had been enacted by many states, by a 7-2 margin. Conservatives again saw this as judicial over reaching by the Court.

Since that decision, the Court has ruled a number of times limiting the scope of Roe v Wade with conservative approval. In 1980, it validated the Hyde Amendment, prohibiting federal funds from being used by indigent women for abortions. In Rust v Sullivan in 1991, it upheld regulations that banned abortion counseling and referrals from family planning clinics that received federal funds. In a number of other cases since, it has favored further restrictions on women’s rights to choose abortion. Since these rulings upheld state and federal laws, they could be considered judicial restraint rather than activism.

Other rulings by the Supreme Court have overturned local laws restricting use of guns and upheld laws that expanded gun rights. These decisions affirmed the conservative outlook of the Court, with judicial activism evident in the first instance when legislation developed by elected bodies was ruled invalid. Rulings narrowing the scope of the 1966 Miranda decision about a criminal suspect’s right to remain silent reinforced the Court’s leaning to the right, as did decisions regarding privacy, free speech and immigration.

However, the major manifestation of the Court’s conservative judicial activism came with its Citizen’s United ruling in 2010 that overturned decades of laws and precedents that had attempted to control campaign spending. Statutes had existed limiting corporate contributions in election campaigns since 1906, the most recent of which was the McCain-Feingold Act passed in 2002. This had been upheld by the Court in a 5-4 decision in 2003 in McConnell v Federal Election Commission. Then Citizens United overrode past precedent to strike down the provisions of McCain-Feingold that limited corporate spending in federal election campaigns, saying it went against the First Amendment that protected freedom of speech. Conservatives had previously argued that judicial activism was only credible when protecting rights that were present in the text of the constitution, or if intent of the framers of the constitution had been evident. These criteria were not met in this bald act of judicial activism by the Court, unleashing Super PACs upon the country.

The question now remains how the Supreme Court will rule on the Affordable Care Act. Given the Court’s recent history of conservative judicial activism, it seems likely the justices will either find the entire Act or the individual mandate unconstitutional. When this decision is handed down, one can not expect any cries against judicial activism to come from the right.

Resurrecting Democracy

A VietNam vet and a Columbia history major who became a medical doctor, Bob Levine has watched the evolution of American politics over the past 40 years with increasing alarm. He knows he’s not alone. Partisan grid-lock, massive cash contributions and even more massive expenditures on lobbyists have undermined real democracy, and there is more than just a whiff of corruption emanating from Washington. If the nation is to overcome lockstep partisanship, restore growth to the economy and bring its debt under control, Levine argues that it will require a strong centrist third party to bring about the necessary reforms. Levine’s previous book, Shock Therapy For the American Health Care System took a realist approach to health care from a physician’s informed point of view; Resurrecting Democracy takes a similar pragmatic approach, putting aside ideology and taking a hard look at facts on the ground. In his latest book, Levine shines a light that cuts through the miasma of party propaganda and reactionary thinking, and reveals a new path for American politics. This post is cross posted from his blog.

Image via Shutterstock.com

Author: ROBERT A. LEVINE, TMV Guest Voice Columnist

Political junkie, Vietnam vet, neurologist- two books on aging and dementia. Last book on health care reform- Shock Therapy for the American Health Care System. New book on the need for a centrist third party- Resurrecting Democracy- A Citizen's Call for a Centrist Third Party- will be available early October 2011

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7 Comments

  1. Judical activism is in the eye of the beholder at the time the decision is made. The Supreme court has to look to years into the future as to the impact that a law may have on citizens. Those that complain about jusicial activism are only looking at today. Who would argue that Brown V board of education was wrong? Roe v Wade is still being argued for a point of view of when life begins and that will never be settled for many, but the fact remains that women have the right to choose and for many today, unlike when the decision was announced, that was the right decision.

    Now the court has the Affordable Care Act. The court is not deciding on the legality of the act itself, it is deciding on the requirement of everyone paying based on the commerce clause. What impact will requiring everyone to buy healthcare coverage now have on those 30 years from now when other things are causing fiscal damage to the economy? Long term care insurance, will everyone be forced to buy it? Funeral insurance (like Sweden)since the baby boomers are dieing and costing money?

    Had the fee been a tax, that law would not evven be before the court. Pelosi said wait and read the bill. They did, found that the commerce clause was not meant for this purpose and now the court has to decide what this one law using the commerce clause would have on a host of things far into the future we can not even image at this point.

  2. I’ve never liked the term judicial activism. It seems to imply that the judicial branch of the government should just sit there and do nothing. It is the 3rd branch of this government. They are the ones who HAVE to be educated in the ins and outs of legal process, in order to ensure that elected officials, who can be illiterate racist morons if they can get enough people to vote for them, don’t pass laws that violate our rights. The judicial branch is SUPPOSED to intervene in cases sometimes. Sometimes they are going to flub it, like with Citizens United. But to say they don’t have any place to make rulings is silly.

  3. Right or Left, too much is the problem.
    CU was too much, I’m sure there is a good Left leaning example.

  4. Conservatives had previously argued that judicial activism was only credible when protecting rights that were present in the text of the constitution, or if intent of the framers of the constitution had been evident. These criteria were not met in this bald act of judicial activism by the Court, unleashing Super PACs upon the country.

    One has to apply some pretty creative interpretation to the constitution to believe this argument.

    The text of the first amendment says “Congress shall make no law…abridging the freedom of speech.” I will be the first to admit that it fails to say “we mean people acting on their own or collectively.” Neither does it say “we mean all 7 days of the week,” nor “yes, communists too.”

    Its conciseness does not constitute a license for Congress to skewer our right with such distinctions. Robert, I’m sure you would agree that if Congress outlawed free speech on Sundays, the court would have a textual basis for overruling them. So I don’t see how you can claim that a right to market a political film has no justification in the text of the constitution.

  5. Overturning bipartisan McCain-Feingold and allowing unrestricted funding of political campaigns by outside groups defies common sense. Providing unlimited power to the affluent to control advertising makes one person-one vote a joke, providing unequal influence over elections to those who have lots of money. It’s just unfair. And I doubt the Founding Fathers would have seen Citizens United as protecting free speech. Of course, we’ll never know.

  6. People have always had unequal influence. The premise of one-person-one-vote is that voters will eventually find a workable path regardless. The CU objectors uniformly claim to be standing up for democracy, yet obviously have very little faith in it.

    Money is the tool we use to scale pretty much every process we have beyond the size of, say, a commune. The idea that a national government for 300 million people could run on anything else defies common sense.

  7. Judicial activism originally meant making new law from the bench. I find it a stretch to consider the legal issues over the individual mandate to be “judicial activism”. While I think the policy is a good one, I don’t think you can make a good argument that using the interstate commerce clause to require someone to engage in commerce is established law.

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