Henry Imler September 12th, 2006

Activism Is in the Eye of the Ideologist

The conservative justices were far more willing than the liberals to strike down federal laws — clearly an activist stance, since they were substituting their own judgment for that of the people’s elected representatives in Congress.

Really?

What about this: Anal Philosopher: Judicial Activism

Suppose Congress and the president enacted a law that
made Roman Catholicism the official religion of the United States. The
United States Supreme Court would strike it down in a heartbeat as a
violation of the First Amendment, which prohibits, inter alia, the
establishment of religion. This Supreme Court ruling, according to the
study cited, would constitute judicial activism, despite the fact that
it enforces a clear constitutional norm…

For the record, judicial activism is not the striking down
of legislation. It is the striking down of constitutional legislation,
i.e., legislation that comports with the Constitution. The
judge’s job is twofold: first, to uphold constitutional legislation;
and second, to strike down unconstitutional legislation. If the judge
either upholds unconstitutional legislation or strikes down
constitutional legislation, then the judge is engaged in activism.
Activism means substituting one’s own norms for those of the
Constitution.

That is not to say that conservative judges are more activist than
liberal judges. The study just used a bad definition of judicial
activism.

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