The Myth of Judicial Activism
Another month, another kerfluffle over the phrase "judicial activism." Instead of accepting reality and conceding that it is a silly, pointless phrase not worthy of being defined or refined, the right and the left and the center this week find themselves fighting again over... nothing. These bozos would be better off (and so would we) if they just contemplated their navels for a few hours every day instead of endlessly fighting over this issue. "Judicial activism" means so many different things to so many different people that it means nothing at all. People just need to get over it.
The latest flap all started when a law professor at the University of Kentucky, Lori Ringhand, studied the voting patterns of U.S. Supreme Court Justices to try to determine whether she could quantify and qualify the phrase "judicial activism." Here is her paper so you can read it for yourself. After defining the indefinable phrase to mean instances where a Justice struck down a federal or state law, or overturned Supreme Court precedent, Ringhand concluded that "conservative" justices actually were more "activist" than their "liberal" counterparts.
Her study then was cited in a New York Times house editorial Monday that concluded thusly: "Activism is not necessarily a bad thing. The Supreme Court is supposed to strike down laws that are unconstitutional or otherwise flawed. Clearly, all nine justices, from across the political spectrum, believe this, since they all regularly vote to strike down laws. What is wrong is for one side to pretend its judges are not activist, and turn judicial activism into a partisan talking point, when the numbers show a very different story."
Whoa, Nellie! Them's fighting words to the right. After all, if conservative judges are more activist than liberal judges it won't make any more sense for oily conservative politicians to denounce "activist judges" anymore and then who will they have to blame for their bad laws? So, predictably, the National Review Online posted a piece this morning by a fellow named Matthew J. Franck, who is a professor at Radford University. Franck attacked Ringhand's logic (gee, imagine, two professors disagreeing about methodology) and then of course took aim at the Times for being duped by an argument that is too simple, in Franck's view, to be true.
What is true- and what this episode certainly doesn't disprove-- is that the phrase "judicial activism" ought to be retired to the dumpster of legal and political history, along with the phrases "fellow traveler" and "hippee." As a description, it never had any real meaning. As an insult, it no longer has any real force.
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