Off Topic Messages

Defining Judicial Activism in America

Fri Sep 16, 2005 7:58 pm

September 14, 2005
Anne Coulter

Democrats are so excited about Hurricane Katrina, they're thinking of moving "Camp Casey" to an area outside the National Weather Service. What they haven't figured out yet is how Richard Perle and the "neocons" cooked up a hurricane that targeted only black people. Meanwhile, rescuers in New Orleans have discovered a lower-than-expected 424 dead bodies or, as they're known to liberals, "registered Democratic voters."

In liberals' defense, they've got a better shot at convincing Americans that Bush is responsible for a hurricane than convincing them that John Kerry was fit to be commander in chief. Compared to Kerry, Katrina is a blowhard they can work with.

Liberals think Hurricane Katrina means they get to pick the next Supreme Court justice. And as of today the smart money is on Cindy Sheehan — something about her moral authority being absolute.

It would be a lot of fun to watch liberals going through their "Howard Dean phase" right now, except liberal hysteria always frightens Bush. Instead of poking them through the iron bars of their cages with a stick like a normal person would, Bush soothes them with food pellets and reassuring words. What fun is that?

We're winning! This is no time to concede defeat.

If Americans loved judicial activism, liberals wouldn't be lying about what it is. Judicial activism means making up constitutional rights in order to strike down laws the justices don't like based on their personal preferences. It's not judicial activism to strike down laws because they violate the Constitution.

But liberals have recently taken to pretending judicial activism is — as The New York Times has said repeatedly — voting "to invalidate laws passed by Congress." Invalidating laws has absolutely nothing to do with "judicial activism." It depends on whether the law is unconstitutional or not. That's really the key point.

That's why we have a judicial branch, Mr. Sulzberger, publisher of The New York Times. It's not a make-work program for the black robe industry. It's a third branch of our government. You'll learn more about this concept next year when you're in the seventh grade, Pinch.

If Congress passed a law prohibiting speech criticizing Bush, or banning blacks from owning property, or giving foreigners the right to run for president — all those laws could be properly struck down by the Supreme Court. That's not "judicial activism," it's "judicial."

Invalidating a law that prohibits killing unborn children on the preposterous grounds that the Constitution contains an extra-double-secret right to abortion no one had noticed for 200 years — that's judicial activism. When conservative judges strike down laws, it's because of what's in the Constitution. When liberal judges strike down laws (or impose new laws, such as tax increases), it's because of what's in The New York Times.

The left's redefinition of judicial activism to mean something it's not allows liberals to claim they oppose judicial activism and to launch spirited denunciations of conservative judges as the real "judicial activists." This is the Democrats' new approach to winning arguments: Change the definition of words in mid-argument without telling the guy you're arguing with. Chairman Mao would approve.

Thus, The New York Times prissily informed its readers: "There is a misconception that so-called activist judges who 'legislate from the bench' are invariably liberal. In fact, conservative judges can be even more eager to overrule decisions made by elected officials."

That statement has as much intellectual content as saying: "There is a misconception that so-called activist judges who 'legislate from the bench' are invariably liberal. In fact, conservative judges can be even more eager to play tennis."

The very act of redefining "judicial activism" to mean invalidating any law passed by elected officials is precisely the sort of Alice-in-Wonderland nonsense we're talking about. Liberal judges redefine the Constitution's silence on abortion to mean "abortion is a precious constitutional right." Liberal flacks in the media redefine judicial activism to mean "striking down laws."

The Times' definition isn't even coherent. If it were "judicial activism" to strike down laws — any laws, ever — there would be no point to having a Supreme Court. We could just have some idiot functionary, like Joe Wilson, rubber-stamping whatever the other parts of government do.

Liberals can't win on abortion, gay marriage and bans on the Pledge of Allegiance by allowing Americans to vote. That's why they need the courts to keep inventing rights to abortion, gay marriage and bans on the Pledge of Allegiance.

Normal liberals know that, which is why they duck honest argument. But the crazy liberals don't. That's why Bush needs to concentrate on luring them out of their cages. It takes so little to provoke them! Just let us know before Bush nominates Janice Rogers Brown to the Supreme Court so we can arrange for live TV coverage of George Soros' head exploding, OK?

Sat Sep 17, 2005 12:26 am

I love how the libs say that Justice Thomas is the most activist because he has voted to strike down the most laws. They never investigate further to see whether or not the laws are really unconstitutional.
A law against flag burning was struck down with Scalia as a deciding vote(Texas vs. Johnson). The left don't claim that as judicial activism, because they agreed with the effects of the decision(allowing flag burning), not really caring about the deeper constitutional arguments.
Ironically that case was simply prosecuted wrong. The flag burner had stolen the flag he destroyed, yet was not prosecuted for that aspect of the crime...

Sat Sep 17, 2005 2:04 am

Too often "judicial activism" is a paraphrase for a decision that does not agree with my ideology.

However, I disagree with the contention that anything that is not explicitly written in the constitution is not intended. I think that completely negates the role of the judiciary which is not supposed to be subservient to the other two branches of government but a co-equal. The Founding Fathers wanted room for interpretation by implication. There is a lot left out. The First Amendment says "congress shall pass no law... abridging freedom of speech or the press." Yet what constitutes speech is never defined.

There is room for interpretation and courts since the beginning of the country have largely agreed with that.

For instance, we are often told the Constitution contains no right for privacy. That's true. There is nothing explicitly mentioning privacy. However, if you look at the first four amendments and the ninth amendment, all of these relate to privacy issues. I don't think it's judicial activism to assume that there is a right to a privacy when half of the Bill of Rights indicates that intent.

The issue is also confused because a lot of "so-called" judicial activism (I say so-called because I don't want to make a judgement advocating or dismissing any decisions) has been at the state level and those judges are reacting first to what's in the state constitutions which is often a very different gorilla.