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Stuart Taylor: Conservative Roberts Court Is Judicially Activist

By Big Tent Democrat

UPDATE - See also Daphne Eviatar, Scott Lemieux, and Lean Left.

I wonder if this obvious fact will now break through to the Media. I have written over and over that Chief Justice Roberts has proven to be the most brazen judicial activist the Court has seen in some time. Now conservative legal commentator Stuart Taylor is saying the same thing:

Conservative critics of Judge Sonia Sotomayor may be digging themselves into a hole if they keep hurling the tired old "liberal activist" slogan at her. The reason is that her supporters can plausibly retort that these days, the Supreme Court's conservatives are as activist as the liberals, especially on racial issues.

No kidding. Now will the Media feel it is acceptable to report this obvious fact? That Roberts and his cohorts are NOT "moderate" and "modest?" That instead they are brazen, extreme conservative judicial activists? More . .

Taylor also demonstrates the conservative view of "judicial activism" - it's bad when liberals do it but "necessary" when conservatives do it:

Liberals denounced this as flagrant judicial activism. I agreed to some extent in my July 7, 2007, column because -- in my view -- Roberts's plurality opinion sought to transfer too much power over such issues to judges, and away from the political branches and thus from the voters, by imposing a more absolutist ban on any and all racial classifications than is justified by the Constitution's language and history. (In my September 27, 2008, column, I also argued that all nine justices are judicial activists.) But is it judicial activism when the justices stretch the Constitution to go over the heads of the political branches -- which are dominated by special-interest lobbies -- not to overrule the voters but rather to give them what they want?

This is, of course, absurd. Voters express their preferences not by Quinnipiac poll, but by electing representatives. President Obama was elected President of the United States. The Democrats were swept into power in the Congress by large majorities. Indeed, they will now hold the largest majorities seen in the Congress since 1980.

But Taylor here proves my axiom - to conservatives there is no bad conservative judicial activism - only bad liberal judicial activism. Thus, Taylor is demanding extreme conservative judicial activism in the Ricci case:

But it would more than justify a ruling for the white New Haven firefighters. Far from being activist, such a decision would vindicate the central thrust of the 1964 Civil Rights Act and the Constitution's equal protection clause.

This is false. Just because Taylor agrees with the POLICY result, he thinks it would not be judicial activism if the Roberts Court were to overturn the will of Congress and a 38 year old Supreme Court precedent.

This is absurd. Griggs was decided 38 years ago. Congress, including many Republican congresses, has had many opportunities to overturn that decision by legislative action. As they did regarding the Ledbetter decision (President Obama signed the law overturning the Supreme Court decision a t the beginning of his term), the Grove City decision (which the Congress overturned in 1988 when it passed the Civil Rights Restoration Act) and earlier when the Congress overturned a Supreme Court decision that effectively repealed by judicial fiat many important aspects of the Civil Rights Act (the Congress passed a law signed by the Republican President George H.W. Bush.)

Taylor's position is intellectually incoherent. Which proves my point - for conservatives like Taylor "judicial activism" is only bad when "liberals" do it. It is an empty judicial philosophy.

It is the conservative political philosophy regarding the Supreme Court. Conservative judicial activism = good. "Liberal" judicial activism = bad. Taylor does a service by laying it out so honestly.

Speaking for me only

Full post as published by TalkLeft on June 05, 2009 (boomark / email).