For most of the new century, conservatives have sounded the battle cry about the dangers of “activist judges.” By their stated definition, activist judges are judges who decide cases based on their personal political views rather than legal precedent and adherence to the Constitution. What they really mean by the term, of course, is judges who lean left.
The hypocrisy has long been evident to anyone who pays the faintest of attention to American politics: “activist judges” are just fine when they agree with a conservative platform, but are a threat to our very way of life when they legalize abortion, stop deportation of illegal immigrants, or oppose the teaching of Creationism in schools. “Judicial activism” is an empty political slogan, signifying nothing, and intended to do nothing more than rally the Republican base to cough up those sweet donor dollars.
In modern politics, it would be difficult to find any judge who is not driven in part by personal politics. The days of defining judges by strict vs. broad constructionism are long past. Today, judges are liberals or conservatives, and it would be impossible for those ideologies not to impact rulings — in the same way that purely objective journalism is an unattainable dream.
Certainly, some judges try harder than others to pore over precedents, previous rulings, and legal minutiae. Some take the responsibility of adjudicating more seriously than others, and consider it their duty to listen to every word spoken by counselors and allow themselves to be persuaded when appropriate. Others have their minds made up before a case even begins.
In particular, the modern Supreme Court has proven to be a joke, with four leftist justices always siding with the left, four conservative judges always siding with the right, and the one dude who’s kind of in the middle if you squint usually siding with the right. The conservative justices get tons of heat for always staying close to the nest, but the liberals are no better in terms of breadth of belief. Yes, the Supreme Court handed the presidency to George W. Bush on the basis of politics rather than legal ideology, but all four liberals sided with Gore.
However, Republican politicians, media members, and voters continue to cry foul about liberal activist judges — when the single biggest culprit of that behavior has his fat ass planted clearly on the right-hand side of the Supreme Court.
It’s not breaking news that Justice Antonin Scalia is an ideologue and a jackass. Nor is it new information that Scalia has helped do irreparable damage to our legal system, our Constitution’s power, and our country.
What is noteworthy, though, is the brazenness with which Scalia is now declaring his own small-mindedness and doublespeak. In his new book (a must-read, I’m sure), Scalia lays the groundwork for his eventual vote against Obama’s health care policy despite previous positions that would seem to make doing so a logical impossibility. Antonin Scalia cares not about your logic!
Now, within days of the historic ruling, Scalia is releasing a new book in which he finds fault with a Roosevelt-era Supreme Court decision that forms a critical part of the legal undergirding for the health care reform law. For Scalia, that’s a dramatic turnaround, because he has previously embraced the premise of that decision in an opinion he authored in 2005 that supporters of the Affordable Care Act have frequently cited.
(Also, Talking Points Memo points out that Scalia refers to himself in the third person, which is so awesome it gives me chills.)
That’s what Scalia does — he works backwards from his decision. He knows what he wants his ruling to be, then figures out a way to justify it legally. That’s activist judgin’, folks.
Scalis hides behind separation of powers when it helps him advance his causes. He screams for states’ rights when it suits his purposes. He sides with individual liberties here and government authority there. The government has the authority to murder prisoners and ban gay sex, but not to ban guns or regulate corporations.
The next time you hear Mitt Romney say something like, “I like justices that follow the Constitution, do not make law from the bench. I would have much rather had a justice of that nature,” shudder to think of the kind of monster he would appoint as president to join Scalia on the high court.