Bench Memos

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The Left’s Sophomoric Definition of Judicial Activism


I heartily agree with Gerry and Robert’s statements concerning the attempt by some liberal academics and politicians to reinterpret what constitutes “judicial activism.” Among the individuals leading the effort to “define judicial activism down” to the simple invalidation of federal laws is politico-masquerading-as-academic Cass Sunstein. Cass frequently throws out the statistic about more federal laws being overturned by the Rehnquist Court, but one must scrutinize his methodology. First, I have yet to see him offer an explanation of why it is that we should only look to federal laws struck down, rather than state and federal laws. His argument against striking down federal laws is that these laws are popularly enacted, but then, so are state laws–at least the last I checked. Indeed, the gay-rights law at issue in Romer v. Evans was passed by popular referenda—so if it were just a matter of being popularly enacted, then that law should have the Sunstein seal of approval. Of course, allowing state laws into the mix would throw off Sunstein’s claim about the “activist” Rehnaquist Court, because the Warren Court cast aside so many state laws that one loses count. It would also force him to confront cases such as Roe, Roper, Lawrence, and numerous other cases in which the Supreme Court threw out 10s of popularly enacted laws with the stroke of a pen.

But even if the statistics weren’t muddled by the “federal-only” legerdemain, the argument falters on the merits. Gerry and Robert are correct in saying that striking down a federal law does not activism make. Their sentiments mirror those of Judge Luttig, who in a March 9, 2003, article in New York Times Magazine, was quoted as saying: “Remember, it’s sophomoric to think that invalidation of a statute equals judicial activism[.] . . . Judicial activism means deciding a case based on one’s personal predilections, regardless. It might well take the form of sustaining a law that should be stricken.” The fact that liberal academics like Cass Sunstein have taken part in judicial strategy sessions with Democrats intended to block Bush’s judges, after which they proceed to churn out “scholarship” that is as vapid as these arguments concerning judicial activism shows that they are simply partisans—having abandoned anything that would even resemble scholarship.


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