Kos Proves Smith's Point

As if responding directly to the commentary by Tara Smith I quoted in my last post, the folks at Daily Kos dredge up all the same old fallacious arguments about judicial activism, saying it's not the liberals who are the worst, but instead it's the conservatives. This is the perfect example of what Smith meant when she wrote:

Each camp has its list of outrageous court decisions, which it denounces as deliberate distortions of law, cavalierly imposed by “judicial activists.” That epithet has become little more than a verbal grenade, hurled, too often, simply to impugn any decision with which one disagrees.

To support their view of the playground politics of the Court, they quote two different surveys by legal scholars that seem to show that the more conservative justices are consistently "more activist." One of the surveys, in fact, comes from Cass Sunstein.

In a July of 2008 piece, Sunstein hands out his cheekily-named "judicial partisanship awards" by surveying "well over 20,000" judicial decisions to find out which justices were the most "activist." It is important to note that Sunstein's definition of activism is partisanship, and more importantly, voting to strike down regulations proposed by the legislature or executive.

With this measure, he found that the arch-conservative Justice Scalia was the "most activist."

Whether or not Scalia's particular decisions were the right ones, this metric highlights two important points made by Smith. She noted that activism on the bench, in and of itself, is not a negative, and the opposite of judicial overreaching is not the complete absence of action. She said, "Judges are not to be passive spectators; adjudication is an activity, calling for the exercise of careful, objective judgment."

And in the context of the vague, absurd, rights-violating laws passed by the legislative branch, and the vague, absurd, rights-violating regulations enacted by the executive -- most of which, from both branches, serve to abridge our liberties -- the court is put in an untenable position, even assuming for the sake of argument that it was made up of truly objective thinkers. As Smith wrote, "Much of the responsibility for the eventual court rulings that often strike us as judicial overreaching, in other words, actually stems from those who have irresponsibly crafted our laws and left courts in a 'damned if they do, damned if they don’t' position."

I think that if I were on the Court, I'd be voting to strike down most of the things that passed my bench too, using individual rights as my standard. Would this be overreaching, or the only rational course of action? As I said previously, I'm not defending Scalia himself, as I haven't followed his career closely enough to say one way or the other. I simply use this example to show that having a penchant for striking down laws in this environment is not necessarily a sign of "Justices Gone Wild."

In the end, DailyKos and Cass Sunstein unintentionally prove Smith's points, that an active (but objective) judiciary is desirable, especially when the dross created by the other two branches is so pervasive.

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For a detailed look at the dominant schools of though in Constitutional interpretation, see Tara Smith's paper in the Duke Journal of Constitutional Law & Public Policy:

"WHY ORIGINALISM WON'T DIE -- COMMON MISTAKES IN COMPETING THEORIES OF JUDICIAL INTERPRETATION"