[Mb-civic] "Judicial Activism"

[ean at sbcglobal.net]

http://www.nytimes.com/2005/04/19/opinion/19tue3.html?ex=1114574
400&en=0e1a0da374b923c7&ei=5070

The New York Times
April 19, 2005
EDITORIAL OBSERVER

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

Not since the 1960's, when federal judges in the South were 
threatened by cross burnings and firebombs, have judges been so 
besieged. Senator John Cornyn, Republican of Texas, set off a furor 
when he said judges could be inviting physical attacks with 
controversial decisions. And last week the House majority leader, Tom 
DeLay, called for an investigation of the federal judges in the Terri 
Schiavo case, saying ominously: "We set up the courts. We can unset 
the courts."

Conservatives claim that they are rising up against "activist judges," 
who decide cases based on their personal beliefs rather than the law. 
They frequently point to Justice Antonin Scalia as a model of honest, 
"strict constructionist" judging. And Justice Scalia has eagerly 
embraced the hero's role. Last month, after the Supreme Court struck 
down the death penalty for those under 18, he lashed out at his 
colleagues for using the idea of a "living Constitution" that evolves over 
time to hand down political decisions - something he says he would 
never do.

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."

Justice Scalia likes to boast that he follows his strict-constructionist 
philosophy wherever it leads, even if it leads to results he disagrees 
with. But it is uncanny how often it leads him just where he already 
wanted to go. In his view, the 14th Amendment prohibits Michigan from 
using affirmative action in college admissions, but lets Texas make 
gay sex a crime. (The Supreme Court has held just the opposite.) He 
is dismissive when inmates invoke the Eighth Amendment ban on 
cruel and unusual punishment to challenge prison conditions. But he is 
supportive when wealthy people try to expand the "takings clause" to 
block the government from regulating their property.

The inconsistency of the conservative war on judges was apparent in 
the Terri Schiavo ordeal. Mr. DeLay, an outspoken critic of activist 
courts, does not want to investigate the federal trial judge and the 
United States Court of Appeals for the 11th Circuit for judicial activism, 
but for the opposite: for refusing to overturn the Florida state courts' 
legal decisions, and Michael Schiavo's decisions about his wife's 
medical care.

The classic example of conservative inconsistency remains Bush v. 
Gore. Not only did the court's conservative bloc trample on the Florida 
state courts and stop the vote counting - it declared its ruling would not 
be a precedent for future cases. How does Justice Scalia explain that 
decision? In a recent New Yorker profile, he is quoted as saying, with 
startling candor, that "the only issue was whether we should put an end 
to it, after three weeks of looking like a fool in the eyes of the world." 
That, of course, isn't a constitutional argument - it is an unapologetic 
defense of judicial activism.

When it comes to judicial activism, conservative judges are no better 
than liberal ones - and, it must be said, no worse. If conservatives are 
going to continue their war on the judiciary, though, they should be 
honest. They do not want to get rid of judicial activists, a standard that 
would bring down even Justice Scalia. They want to rid the courts of 
judges who disagree with them.

Copyright 2005 The New York Times Company 
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