One of the noteworthy things about this trend is that, as Jost suggests, it undermines right-wing talking points -- talking points stubbornly pushed by the conservative Committee for Justice's Sean Rushton in Jost's piece -- about how liberals favor "activist" judges who disrespect legislative decisions while conservatives favor "restrained" ones who honor them:
Too often, Bush’s judges display a political slant in deciding when to exercise judicial restraint and when not. [Former Justice Department lawyer Jay] Bybee, for example, voted in dissent in 2004 to strike down a “living wage” ordinance enacted by the city of Berkeley, Calif. Two Bush appointees on the 5th Circuit voted, also in dissent, to limit the scope of the Endangered Species Act. With more Bush judges, dissenting opinions like those could become majority rulings, making federal courts a graveyard for legislative initiatives as they were in the early 20th century.
Jost could have mentioned a host of other opinions by Bush II judges, as well as those by other judges favored by movement conservatives, that have either weakened or undone legislative efforts to protect workers, consumers and public health and safety. For more on the rise of this decidedly conservative brand of judicial activism, check out our recent Full Court Press post on recent comments by Republican Senate Judiciary Committee Chair Arlen Specter.