We’ve long known that judicial activism is merely whenever a court rules against what the wingnuts want right now (in a few years, if their desires change, they may no longer view the ruling as activism), but it is nice to have someone say it in print:
For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law. According to Chief Justice John Roberts, his job is just to “call balls and strikes.” According to Justice Antonin Scalia, conservative jurists merely carry out the “original meaning” of the framers. These are appealing but wholly disingenuous descriptions of what judges — liberal or conservative — actually do.***
Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.
Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.
For me, the clearest example of the lie regarding judicial activism is the way that Republicans treated Judge Greer in the Terri Schiavo case. The Republican Judge Greer made the fatal mistake of actually calling balls and strikes and correctly according to Florida law, ruled against the fringe right and the Schiavo dead-enders, and for doing what conservatives claim they want- strict interpretations of the law, Greer was subjected to a smear campaign so fierce that included his being asked to leave his church. The current Republican candidate for Governor in Ohio, John Kasich, told people that Judge Greer “sold out” Terri Schiavo. He was called a murderer, and told that he was committing judicial homicide.
Republicans and conservatives don’t care about the law, the Constitution, or “conservative” principles or “strict constructionism” or any of he other bullshit that rolls so effortlessly off their lips. They care about what they want right now, and if they don’t get their way, you are an activist judge. Period.