Psst ... Justice Scalia ... You Know, You're an Activist Judge, Too

[struggle4progress]

By ADAM COHEN

Published: April 19, 2005

<snip> The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution's plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just fine when it advances their own agendas.

Justice Scalia's views on federalism - which now generally command a majority on the Supreme Court - are perhaps the clearest example of the problem with the conservative attack on judicial activism. When conservatives complain about activist judges, they talk about gay marriage and defendants' rights. But they do not mention the 11th Amendment, which has been twisted beyond its own plain words into a states' rights weapon to throw minorities, women and the disabled out of federal court.

The 11th Amendment says federal courts cannot hear lawsuits against a state brought by "Citizens of another State, or by Citizens or Subjects of any Foreign State." But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." If another judge used that rationale to find rights in the Constitution, Justice Scalia's reaction would be withering. He went on, in that 1991 decision, to throw out a suit by Indian tribes who said they had been cheated by the State of Alaska.

Conservative politicians insist that courts should defer to the democratically elected branches, but conservative judges do not seem to be listening. The Supreme Court's conservative majority regularly overturns laws passed by Congress, like the Violence Against Women Act and the Gun-Free School Zones Act. The court has even established a bizarre series of hoops Congress must jump through to pass a law protecting Americans' 14th Amendment equal-protection rights. Congress must prove in many cases that the law it passed is "congruent" and "proportional" to the harm being addressed. Even John Noonan Jr., an appeals court judge appointed by President Reagan, has said these new rules - which Justice Scalia eagerly embraces - reduce Congress to the level of an "administrative agency." <snip>

http://www.nytimes.com/2005/04/19/opinion/19tue3.html?incamp=article_popular_5

[liberalhistorian]

1. This is what I've been saying

all along as far as the RW whining about "activist judges" and "judicial activism" is concerned. Any ruling by a judge that the RW doesn't like is considered "activist", while conservative judges can twist and distort the constitution and the law all they like as long as they're ruling the way the wingnuts want.

All the judges in the Schiavo case, for instance, were doing exactly what conservatives claim they want judges to do, following the law and not interpreting it the way they wanted. But conservatives only want judges to follow the law when the judges are ruling the way THEY want them to.

The same kind of hypocrisy is evident in the RW bleating about "states rights." They want states to have all the rights until those states try to do things they don't want them to do, then they'll assert the federal government's privilege and power over the states. Medical marijuana in California, the Death With Dignity Act in Oregon, etc., etc.

[struggle4progress]

3. The inconsistency isn't even principled. In "Let's Steal the 2000 ...

... Election," the wingnut judges stated clearly that their ruling had no value as a precedent: to put it bluntly, if the same facts were to arise in a case where the established precedent would elect a Democrat, the judges would not give weight to the earlier case.

[liberalhistorian]

4. That's certainly one of the things

that bothered me the most about that so-called "decision", the blatantly obvious stretching and distorting the justices had to do to make the "decision" come out the way they wanted; their clear statement that it was not to be considered a precedent, something virtually unheard of in Supreme Court decisions, was and remains especially troubling.

[Freedom_from_Chains]

2. This is what makes these people hypocrites

When they don't get their way it's all about judicial activism, when they do get there way, it's all about following the rule of law. The fact of the matter is they are trying to suspend judicial review so that they can tromp all over the constitution. An undertaking that is blatantly unconstitutional.

[Skittles]

5. Scalia is a certified whack-job

he has no business being ANY kind of judge, let alone a member of the Supreme Court.