The New 'Activist' Judges

By Molly Ivins, AlterNet. Posted August 24, 2006.

Another bee-you-ti-ful example of the right-wing media getting it all wrong. Here they are having the nerve to mutter in public about "activist judges" because Judge Anna Diggs Taylor has pointed out that spying without a warrant is illegal in this country -- so warrantless telephone tapping is illegal in this country.

Improbably enough, the first complaint of many of these soi-disant legal scholars is that Taylor's decision is not well written. No judicial masterpiece, they sneer. Nevertheless, warrantless spying is illegal.

Did it ever occur to these literary critics that Taylor has a lay-down hand? The National Security Agency program is flat unconstitutional, and for those who insist this means Osama bin Laden wins, it's also ridiculously easy to fix so that it is constitutional. Conservatives in this country have been yipping in chorus for years about "activist judges," and frankly, like fools, many of you bought into the phony political rhetoric about those terrible jurists.

Somehow, activist judges are held responsible for gay marriage, Roe v. Wade and everything else Americans disagree about, as though Americans would never disagree without their encouragement.

Conservatives have been mad at the Supreme Court since it decided to desegregate the schools in 1954 and seen fit to blame the federal bench for everything that has happened since then that they don't like.

As any liberal could have told you, the conservatives didn't want a right-wing shift on the nation's courts because of "social issues" -- that's just a handy political ploy.

Honestly, people, haven't you figured out what this is all about yet? Money. The conservatives are in a snit about "liberal courts" because of money. Corporations being prosecuted for breaking the law! Tobacco companies forced to pay huge fines! Oil and chemical companies made to pay for cleanup at Superfund sites! Oh, the horror, the horror.

The Wall Street Journal's editorial page couldn't stop shivering over it for years. "This is the richest business term in recent memory," Mark Levy, a Supreme Court litigator, told The Wall Street Journal, which has stopped quivering at last. Moving right along in the long-drawn-out battle to deny ordinary citizens access to their own courts, the justices closed down the right to allow class-action securities cases in state courts. The court also kept out of a lower-court decision preventing taxpayers from suing to stop tax breaks that states and municipalities use to lure big business, a notorious example of raging bad policy.

Meanwhile, what a nice gift from the federal bench to the insurance companies when a federal judge in Mississippi decided that hurricane insurance policies excluding water damage are "valid and enforceable." As many of our fellow citizens had an opportunity to learn during Katrina, it's a challenge to sit around in a class IV hurricane, trying to figure out which is wind and which is water damage. "Ooops, there goes the roof, probably wind, followed by a huge run of waves rolling over the house, could be water."

Insurance company stocks went up across the board after the decision, while the industry kindly advised its clients to "keep you eyes wide open when buying new homeowners' insurance." Congratulations to the Katrina survivors who were hanging on by their fingernails.

Money, money, money is the motif of the "New Activist" federal judges, but they have also been busy, busy limiting congressional authority and individual rights. As People for the American Way notes, federal appellate courts -- effectively the court of last resort for most Americans -- are working on: questioning the constitutionality of the Endangered Species Act, overturning the National Labor Relations Board rulings against anti-union discrimination and other unfair labor practices by employers, allowing the Bush administration to keep secret the records of the Cheney energy task force and rewriting by court order a state law on First Amendment activity.

Other Bush appellate judges have ruled to deny protection to workers who file claims of race and disability discrimination, made it harder to protect the environment, and issued other decisions that will affect our lives and liberties for decades. Activist judges, indeed.

Molly Ivins writes about politics, Texas and other bizarre happenings.

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