Bench Memos

Cohen’s Confusion

New York Times editorialist Adam Cohen has a hopelessly confused column in today’s paper.  Cohen’s complaint is that the conservatives on the Supreme Court, Justice Alito and Chief Jsutice Roberts in particualr, are “judicial activists.” According to Cohen, activist judges are those who “substitute their own views for those of the elected branches.”  By this standard, Cohen argues, the 2006-07 Supreme Court term was “one of its most activist terms in years.”  Here is where Cohen’s confusion sets in, as several of the example of purported “judicial activism” he cites are cases in which the conservatives on the Court upheld legislative action, as with the federal Partial Birth Abortion Act.  Cohen cries that the Court “blithely overruled Congress” in its campaign finance ruling, but the turns around and decries the PBA ruling. Cohen complains about the Court failing to defer to federal agencies in one case, but makes no mention that it was the “conservatives” on the Court — not the liberals — who consistently deferred to regulatory agency interpretations of the law in environmental cases. (Two of those cases were decided 5-4).  Cohen then accuses the conservative justices of “dishonesty” and suggests “traces” of a new Lochner era “are emerging” in the current Court’s jurisprudence.  After all that, Cohen closes with an effort to be even-handed:

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.

Of course, one problem for Cohen is that those judicial doctrines he thinks are “better for the nation” are hardly those “more faithful to the Constitution.”

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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