False conception of judicial activism means justices are not judging

Liberal Supreme Court justices have a disconcerting conception of Photo: Flickr Creative Commons

WASHINGTON, October 24, 2013 — While everyone agrees the Supreme Court is activist, liberal justices have a strange and distorted view of judicial activism which indicates their disconcerting unwillingness to overturn unconstitutional laws.

Judicial activism is the practice of judges ruling “based on personal or political considerations rather than on existing law.” In the Supreme Court, this means perversely contorting the language of the Constitution and Bill of Rights to justify laws which are unconstitutional or strike those which are constitutional. The term generally holds a negative connotation.


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Strangely, several Supreme Court justices recently expressed the belief that the Court is plagued with judicial activism, because of the Court’s “readiness to overturn legislation.” Justice Ruth Bader Ginsburg recently said “If [judicial activism is] measured in terms of readiness to overturn legislation, this is one of the most activist courts in history… This court has overturned more legislation, I think, than any other.”

Her assessment is inaccurate, but more peculiar is her suggestion that volume of overturned legislation and judicial activism correlate positively. If a law is unconstitutional, it must necessarily be overturned. Justice Ginsberg’s assertion that overturning too many laws is a display of activism is much like stating that a traffic cop who gives tickets to everyone who has committed a traffic violation is overstepping his duty. In the same way that someone who has violated a traffic law must be given a ticket, a law which has violated the Constitution must be overturned.

If either a judge or traffic cop avoids fulfilling his respective duty, he is not doing his job. Rather, he is abdicating himself of his duty. Senior Attorney at Institute for Justice, Clark Neily, explains that “the very institution of limited government has become imperiled by an epidemic of judicial abdication.” This is because some justices would rather uphold unconstitutional laws than strike them, usually because they prioritize their policy preferences over constitutionality. In this way, abdication can be a display of judicial activism.

Justice Ginsburg stated “we trust the democratic process, so the court is highly deferential to what Congress does.” Justice Elena Kagan similarly touts deference to the other branches of government. The Court’s duty is not to uphold legislative intent, especially as legislative intent is not inherently constitutional. The Court’s duty is to overturn unconstitutional laws. If the Court’s duty was to defer to Congress, America would have no need for the Court.


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Just as a traffic cop should be judged by how many tickets he gives to those who have committed violations (and not to those who haven’t), a justice should be judged by his reliability to overturn unconstitutional laws and uphold constitutional ones, regardless of personal or political preference. Good laws can be unconstitutional and bad laws can be constitutional. Beneficence of laws and constitutionality do not necessarily correlate.

Neily wrote in his new book, “Terms of Engagement,” that “It is implausible to suppose the federal government hits the constitutional strike zone 99.5 percent of the time.” He determined that the Court struck only .5% of Congress’s laws in the latter half of the 20th Century. Congressmen sometimes produce unconstitutional laws which must then be overturned when reaching the Court’s bench, as that is the duty of the Court.

Liberal justices’ conception of judicial activism should be concerning to anyone who cares about the functionality of the Court and its duty to uphold the Constitution. The liberal wing of the Court falsely believes that striking laws, regardless of constitutionality, is judicial activism. 


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