James Leroy Wilson's blog

Wednesday, January 18, 2006

Conservative Judicial Activism?

I have no strong opinion on the Supreme Court's backing Oregon's assisted suicide law. The question appears not to be about federalism. This story quotes Justice Kennedy as saying "Congress did not have this far-reaching intent to alter the federal-state balance" Whereas, in last year's Gonzales v. Raich decision on medical marijuana, it was Congress's intent to trample all over individual and state rights. I'm not being facetious; Congress did intend to include marijuana, but did not intend to include assisted suicide. At least that's what the "liberals and moderates" seem to think. This looks more like an honest disagreement between the justices (and between Oregon and the Bush Administration) about the interpretation of a particular federal law as it was written, not the Constitutionality of the law itself. If Oregon went that route in its arguments, it would seem that Raich would stand as the precedent, with O'Conner joining Thomas in the minority voting to overturn it. In any case, I think the jury's still out that the dissenters, Roberts, Scalia, and Thomas, are engaging in conservative judicial activism.

How would one describe conservative judicial activism anyway? Liberal judicial activists have tended to overturn state and local laws, and even practically overthrow public school systems, based on reading into the Constitution principles and ideals that are simply not there. I would say that any time a judge fails to overturn a duly-enacted law, by definition he is not being an activist. You can not defer to the judgment of representative majorities - state or federal - and be a judicial activist. What you can do, however, as a conservative judicial activist is read out of the Constitution and Bill of Rights provisions that are clearly there to protect the individual.

How's this:
Liberal judicial activism: Undue hostility toward duly-enacted state and local laws and ordinances.
Conservative judicial activism: Undue deference to federal executive power, particularly at the expense of individual rights as enumerated in the Bill of Rights.

The fear about Samuel Alito is that he, and Roberts, will tend to favor Presidential supremacy. That's the impression about Scalia too. I'm very doubtful about Thomas, however, who often sounds like a classical liberal. He's often lumped together with Scalia, but it seems like those two and the late William Rhenquist often drew identical conclusions, but often didn't have the same reasoning.

In any case, I don't care that much about judicial politics anymore. Today, Congress and the President ignore the Constitution every day to the thunderous applause of the mainstream media. If we have to rely on federal judges appointed by the very same Congress and President to protect our freedom, then we've already lost.

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