Judicial Activism by Whom?

The opposite of "judicial restraint," judicial activism is defined by National Review as "a departure from the text, structure, and logic of the Constitution."

A more enlightening definition I found in a law encyclopedia on the internet, defines "judicial activism" as a legal philosophy which holds that "the Supreme Court justices (and even other lower-ranking judges as well) can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges' own considered estimates of the vital needs of contemporary society when the elected 'political' branches of the federal government and/or the various state governments seem to them to be failing to meet these needs."

Whatever the precise legal definition, it's clear that the phrase has become a conservative code word for "liberal" judges whose decisions don't toe the conservative ideological line.

Supreme Court Justice William Rehnquist has for years been railing against the alleged dangers presented by "judicial activism." But recently, as we saw with the Terri Schiavo case, many conservatives have ratcheted up the rhetoric, giving the impression that the American legal system is being run by liberal neo-Nazis who are so evil that they inexplicably want to starve the disabled to death!

Let's consider a couple of relevant facts regarding the Schiavo case that make it hard to swallow the argument that this was yet another case of liberal judicial activism run amok.

For starters, a 1990 Supreme Court decision established that a person in a "consistent vegetative state" has a right to be removed from a feeding tube. That decision dealt with the case of Nancy Cruzan and was supported by liberal and conservative judges.

In a 1997 case, Mr. Originalist himself, Chief Justice William H. Rehnquist, wrote that the Constitution protected "the traditional right to refuse unwanted lifesaving medical treatment."

Liberal judicial activism? "The district court's carefully thought-out decision to deny temporary relief ... is not an abuse of discretion," wrote appellate judges Ed Carnes, an appointee of President George H.W. Bush, and Clinton appointee Frank M. Hull.

Who was the dissenting judge? Charles R. Wilson, a Clinton appointee, who wrote, "I fail to see any harm in reinserting the feeding tube."

The full appeals court, by a 10-2 vote, also declined her parents' pleas. Six of those 10 judges were appointed by Republican presidents.

Matt Conigliaro of Abstract Appeal adds: "I receive e-mail after e-mail telling me that no judge has the authority to end someone's life; that life must be preserved where there is even unreasonable hope, or where there is any uncertainty regarding the person's wishes; that oral evidence can never be clear and convincing; that removing 'life support' is OK, but removing a feeding tube is barbaric and unacceptable.

"Perhaps those sentiments are noble, but they are not the law, and it was not within Judge Greer's power to make them the law. It is perfectly acceptable to disagree with the law on these points, but to condemn the judge for following the law as it exists is irresponsible and contrary to the basic principles on which our government, with its separate branches, was created."

And we haven't even skimmed the surface about the flip side of this coin, which is conservative judicial activism. In fact, before you give any credence to the right's judicial belly-aching, you might want to read Syracuse University Professor Thomas Keck's book The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (2004).

"There are several reasons why I reach that conclusion. Perhaps the most striking reason is that the (post-1994) Rehnquist Court has struck down federal statutes as unconstitutional more frequently than at any previous point in the Court's history. The Court has struck down 33 federal statutes since 1995, which is a literally unprecedented rate," Keck told the American Prospect.

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