If there’s one thing today’s dramatically polarized politicos and pundits can agree on it’s this – judicial activism is bad. Unfortunately the term has all but lost its meaning, except as a denigration of someone whose views you disagree with.

Mainstream conservative thought holds Roe v. Wade as the quintessence of judicial activism, arguing not that the Supreme Court’s decision should be reversed and abortion federally banned, but that the Court had no constitutional authority to decide the legality of abortion.

Furthermore, this thought maintains that the a-constitutional “right to privacy” is a poor and dangerous excuse for judges to enter the realm of politics. Thus conservatives such as Scalia and Thomas argue for judicial restraint, a clear adherence to the judicial powers as established in the Constitution.

The subsequent liberal response of similarly defining their opponents as judicial activists, although intellectually misleading, brilliantly neutralized the argument, rephrasing the debate in terms of whether or not judges’ beliefs are in the “mainstream” of American political thought. Of course anyone who questions the legitimacy of Roe v. Wade, which has become integral to liberal orthodoxy, is clearly out of what liberals would consider the mainstream.

Thus in today’s political climate, the standard of many senators for confirming a justice includes more than personal integrity and legal qualification.

For many senators, nominees must also share a political philosophy. This is certainly the case with the newest member of the Supreme Court, Justice Samuel Alito, where the litmus test of Roe almost got him Borked.

We are in an age when the entire process of replacing a Supreme Court justice revolves around a single politically controversial issue.

We are in an age where the role of lobbyists is being heavily questioned.

We are in an age when the most important issue receives such an inordinate amount of lobbying money.

We are in an age when each Senator more than likely knows whether or not he will vote for confirming the nominee well before the nominee’s Senatorial hearings, likely even before his nomination, when the hearings include enough desperate slander so as to provoke the wife of the nominee to have an emotional breakdown.

We are in an age when both sides relentlessly demonize judicial activism.

And in such an age, the original argument deserves a great deal of consideration.

Is the high degree of politicization of the theoretically impartial judiciary a result of judicial activism?

It’s true that over roughly the last half-century the Supreme Court has increased its involvement in moral issues such as abortion, homosexual rights, capital punishment and assisted suicide.

As Antonin Scalia argues, this trust in the apolitical judiciary resembles the earlier belief that technical experts could create apolitical regulatory agencies such as the Interstate Commerce Commission and the Federal Communications Commission – agencies that fell apart when they inevitably encountered questions over societal values such as the importance of quality television programming. When it comes down to moral value questions, Scalia and many other conservatives argue, questions should be argued by the people and decisions reached politically. Deciding political issues in apolitical institutions inevitably politicizes those institutions.

This argument in and of itself follows such clear logic it is hard to refute, which is why liberals have instead changed the scope of the debate to one that puts them on equal ground.

Liberals know they have more to lose by unsympathetic justices than conservatives do – which can be seen by comparing the struggles of Bush’s nominees to the nearly unanimous confirmation of Clinton’s nominees in the 90s. The “judicial activism” liberals speak of is no more than a usurped shibboleth used to invalidate the obvious effect of their winning controversial aspects of the cultural war in the wrong place.

Cook can be reached atacook@campustimes.org.



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