When it comes to judicial activism, it’s like that old expression, “One man’s meat is another man’s poison?” It depends on which side of the activist fence you’re on. If you’re a conservative, a little judicial activism is a good thing, especially if it results in the appointment of a president whose policies you agree with or the overturning of a particular piece of legislation you find objectionable. On the other hand, if that judicial activism overturns a ban on same-sex marriage, well that’s going too far. We can’t have our courts setting themselves up as the arbiters of social mores, unless of course those mores conform to a certain philosophical leaning. Clearly the difference between meat and poison boils down to who’s holding the fork.
Over the last few days it has been humorous to say the least listening to Republicans condemn President Obama for “bullying” the Supreme Court over the soon-to-be-announced decision on the legality of his healthcare law. I mean you’d think he was calling for the subpoenaing of judges before Congress to make them explain the reasoning behind their decisions. Oh, that was Newt Gingrich. That silence you hear is the plethora of Republicans condemning the former Speaker’s outlandish comments. Apparently, when a liberal president calls out an activist court, he’s being a bully; when a conservative candidate for president does it, he’s a champion of judicial restraint and the Constitution. See what I mean about meat and poison?
Of course, while the Court deliberates the fate of a signature piece of legislation over an obscure interpretation of the Commerce Clause, just this past week, it ruled 5-4 that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if there is no reason to suspect the presence of contraband. Mr. swing-man himself, Justice Kennedy, joined the supposedly non-activist contingent and even wrote the majority opinion, which he summed up quite eloquently in this one line: “People detained for minor offense can turn out to be the most devious and dangerous criminals.”
Seriously, that’s the line of reasoning behind the majority for upholding the right of the government to strip-search you without cause. You MIGHT be up to no good. If only the police had been able to strip-search Timothy McVeigh, the Oklahoma City bombing might never have happened. Of course the fact that several thousand tons of explosives would’ve been impossible to hide up his ass, apparently hasn’t dawned on Kennedy – a point made brilliantly by Jon Stewart on The Daily Show recently – but why let common sense get in the way of shitting all over the Fourth Amendment?
The Supreme Court, for all intents and purposes, has now deteriorated into a political vortex in which it finds itself steeped in a self-serving ideology that neither represents nor is consistent with said ideology. As Andrew Trees of The Chicago Tribune commented, “A majority of justices view a strip-search for something as trivial as failing to use a turn signal as perfectly acceptable, but requiring a citizen to buy health care is an unwarranted intrusion on personal liberty.”
Or, as one particular letter to the editor of The New York Times succinctly put it, “How remarkable to live in a world where, for our most conservative Supreme Court justices, the right not to buy health insurance seems more inviolate than the right to be free from unwarranted, unreasonable and humiliating strip searches.”
The canard of judicial restraint is nothing more than a smoke screen for a nefarious attempt to rewrite decades of jurisprudence that is viewed by the Right as inimical to their interests. Whether it was Bush v. Gore or Citizens United or, now, the Affordable Care Act, the one common denominator in every one of these landmark cases is the manner in which, slowly but surely, the branch entrusted with protecting the integrity of the Constitution has been the one undermining it.
Ironic wouldn’t you say that a supposedly non-activist Supreme Court has shown anything but restraint in its decisions and is now so blatantly partisan that even some conservatives are beginning to openly wonder about their motives. In an op-ed piece in The Daily Caller, titled “Why Conservatives Should Want the Supreme Court to Uphold Obamacare,” Connor Boyack, to be clear a critic of the law, believes that it was never the intent of the Founders that the Court be “the final arbiter of what is or is not constitutional.”
He cites Madison and Jefferson to support his opinion. Madison warned that the judicial branch could “usurp” the authority of the other two branches and in so doing “may exercise or sanction dangerous powers beyond the grant of the Constitution.” Jefferson went a bit farther in rebuking the premise that the Court should be the final arbiter on matters of constitutionality, believing it to be “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.”
In other words, power corrupts and absolute power corrupts absolutely. If ever there was a better example of absolute power corrupting absolutely, it is today’s Supreme Court. This is exactly the sort of thing the Founders didn’t want to happen: nine despots holding the country hostage to their own form of judicial tyranny.
While I’ve never been one to be an alarmist, I must confess I am pessimistic as to the long-range prospects for the nation, given the current makeup of the judiciary. It’s one thing to have the legislature under the auspices of a political movement that is myopic, insular and inept. At least there is a remedy afforded by the ballot box. There is no such remedy for a lifetime appointment to the bench save for old age and retirement, and that remedy, at least for the time being, doesn’t appear to be in the offing.