Bench Memos

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Re: Senator Leahy and ‘Conservative Activism Pure and Simple’


A couple of addenda to yesterday’s post on Senator Leahy’s speech, in which he says it would be “conservative activism” were the Supreme Court to strike down Section 5 of the Voting Rights Act as unconstitutional.

First, here’s an analogy I could have added to the “footnote” at the end: If a policeman asks a judge for a search warrant and produces no evidence, he won’t get it; if he produces good evidence, then he will get it. That’s not judicial activism. Likewise, as the evidence of severe discrimination peculiar to the South diminishes, so will the defensibility of Section 5 before the courts. That’s not judicial activism either.

Second, it’s always amusing when liberals try to tell conservatives how to apply our judicial philosophy, and not just because they always get it wrong. As Andy Rooney might put it: Ever notice how liberals are always telling conservatives how to apply their judicial philosophy, but conservatives never tell liberals how to apply theirs? Why is that? Well, Andy, the reason is that liberals have no coherent, objective philosophy, so it’s impossible to accuse them of misapplying it.

Seriously, can you think of a situation where a conservative could say, even if he wanted to, “Today’s Supreme Court decision is completely at odds with the approach to judicial decisionmaking that liberals say they favor”? 


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