[Fwd: judicial activism]

[Scott Gerber]

I have a lengthy op-ed in today's Legal Times in which I address, and
reject, much of what Steve Wasby objects to in his thoughtful post.  I
state, for example, that:

"The protestations of the nation's leading liberal academics, newspapers,
and interest groups notwithstanding. . .it's no more inappropriate for a
conservative judge to invalidate a law that he or she concludes is
inconsistent with the Constitution than it is for a liberal judge to do so.
 Put directly, liberals aren't entitled to some sort of judicial Brezhnev
Doctrine:  What favorable precedents liberals have, liberals keep. . . .
If conservative judges decide in good conscience that, for example, the
Constitution doesn't guarantee women abortion rights (the text of the
Constitution is silent on the matter) or minorities the right to
preferential treatment in education and employment decisions (the equal
protection clause of the Constitution suggests that white males can't be
discriminated against either), then so be it.  Indeed, conservative judges
and judicial nominees should not be libeled as "extremist" and "far right"
if they interpret the Constitution as written--rather than as some members
of the Senate, the press, interest groups, and academia wish it were
written.  The judicial oath of office requires them to do so."

Best wishes,
Scott Gerber
Law College
Ohio Northern University

At 07:14 PM 11/24/02 -0500, you wrote:
>-------- Original Message --------
>Subject: judicial activism
>Date: Sun, 24 Nov 2002 11:10:11 -0500
>From: "Stephen L. Wasby" <wasb at cnsunix.albany.edu>
>To: conlawprof <conlawprof at listserve.ucla.edu>
>
>
>
>I find fascinating the refusal of some to accept the possibility that
>conservative judges engage in judicial activism, or the stretching to
>insist it was the liberals who engaged in activism more than
>conservatives ever have done.
>    What prompted this was Thomas Sowell's column --it appeared in the
>Albany Times-Union on Saturday, November 23-- in which he criticizes
>Cass Sunsstein for "[o]ne of the more recent attempts at portraying
>judicial equivalence of the left and right" in which Sunstein talks of
>"'the new judicial activists' who have 'struck down at least 26 acts of
>Congress.'"
>    Sowell then goes on to say --and this is what I find amazing:
>"Judicial activism is not measured by how many laws are struck down or
>upheld, but on what grounds have been either upheld or ruled
>unconstitutional." From there he accused "[l]iberal judicial activists
>of the Warren Court era" of letting stand all sorts of liberal
>legislation that they agreed with, whether or not such legislation
>agreed with the Constitution." Apart from Sowell's purported ability to
>know whether or not the justices in question "agreed with" the
>legislation (I presume he means that they would have voted for it, if
>they were legislators), the mind boggles at his ability to determine
>that the legislation is or is not constitutional.
>    And --and here we have a link to the thread about Wickard-- he does
>on to say, "Earlier liberal activists even allowed the term interstate
>commerce to be stretched so far as to give Contress the power to
>regulate a man who grew vegetables in his own garden for his own use."
>    The term "activism" has multiple meanings -- from overturning
>legislative acts to overturning precedent to overturn lower court
>rulings-- which can lead to conflicting labels in the same case, but
>NOwhere have I ever seen it called "activism" to allow an act of
>Congress to stand.
>    But, of course, it is only liberals who engage in activism;
>conservatives never do, or (accordingly to Sowell, I guess), only
>barely.   I've long argued that one of Reagan's greatest feats was to
>marry the terms "liberal" and "activist" at the hip . . . .
>         Steve Wasby
>