Sunday, July 29, 2007

John Roberts and his activist Supreme Court

A new Washington Post-ABC poll shows that 56 percent of Americans disagree with the U.S. Supreme Court's recent ruling that sharply restricts the ability of local school boards to use race as a consideration when making school assignments to achieve diverse student bodies.

Even most whites didn't like the 5-4 decision, which broke along right-left lines among the court's nine members.

What I find peculiar about the matter is that we haven't heard a howl from the nation's conservatives about how the court, under Chief Justice John Roberts, is such an activist group.

For decades now, it's been a conspicuous sore point among right-wingers that courts too often overrule decisions made by elected bodies. Such "judicial activism," as it's called, is to be disdained, the conservatives argue.

But in this school case, Roberts and his rightist ilk on the court, none of whom were elected to their posts, substituted their judgement for that of the elected school boards in the cities of Seattle and Louisville. Isn't that the same sort of activism that's been so loudly disparaged by conservatives?

Just asking.


Anonymous said...

So what you're saying is that if the court's decision is unpopular then the court is being activist?

I thought that the supreme court was supposed to decide cases based first on the constitution and then based on precedent. Elected officials decide issues based on popularity, not the supreme court.

The Rascal said...

You miss my point. What I'm saying is that conservatives love to bitch about courts substituting their judgements for those of officials elected by the people. But I don't hear them howling much when the Roberts court does it. I don't see any right-wing editorials about Roberts, Alito and the other conservatives on the court being "activist judges." The poll I cited in the school diversity case was just by way of pointing out that the decision wasn't exactly popular. But neither were there any right-wing complaints about it, no matter that it represented naked activism.

Anonymous said...

I must have missed where you pointed out exactly how the decision was based on the idealogy of the court instead of on the relevant constitutional law. I guess I'll just have to take your word for it based on your expert and in depth legal knowledge.

The Rascal said...

Let me explain again. I think it's hypocritical of conservatives to complain about judicial activism on the part of liberals but not on the part of conservatives. I'm not necessarily opposed to what is sometimes called judicial activism. Conservatives complain that it is always to be avoided. But they don't say that when John Roberts and his ilk resort to it. That's my point. Oh, and thank you for acknowledging my legal expertise. I'm quite proud of it, actually.

Anonymous said...

I'm glad your legal knowledge is better than your reading comprehension. My point is that you never did explain in what way their decision was activist. The fact that it is unpopular or that it goes against the school districts does not make it activist. I was waiting for you to explain how their decision ran counter to the constitution, but you don't seem to understand.

I suspect you have been reading so much of the same trash that you're in a kind of echo chamber. You need to learn to question authority.

The Rascal said...

Of course, in the eyes of its authors, no court ruling runs counter to the constitution. That's as true of the Warren court rulings of 40 years ago (which were decried by right-wingers as "judicial activism") as it is of the conservative rulings of the Roberts court today. It's all in the eyes of the beholder. Adam Cohen made an interesting point recently in a column in The New York Times:

"The other disturbing aspect of the new conservative judicial activism is its dishonesty. The conservative justices claim to support “judicial modesty,” but reviews of the court’s rulings over the last few years show that they have actually voted more often to overturn laws passed by Congress — the ultimate act of judicial activism — than has the liberal bloc.

"It is time to admit that all judges are activists for their vision of the law. Once that is done, the focus can shift to where it should be: on whose vision is more faithful to the Constitution, and better for the nation."

Henry said...

Based on Cohen's writings, isn't the Senate confirmation process a joke? If every justice is an advocate for 'their vision of the law', why can't they be questioned about their adovocacy prior to confirmation? I find this process just obfuscation and double talk. Why have the hearings if we can't learn anything about the person?

The Rascal said...

By the way, a first cousin of "judicial activism" in the family of jurisprudence buzz terms is "strict constructionist," which is meaningless in the final analysis. The silliness of the term was evidenced in something the late Chief Justice William Rehnquist once said: "A strict constructionist judge is one who favors criminal prosecutors over criminal defendants, and civil rights defendants over civil rights plaintiffs." Lord, save us from such strictness!