In this week’s Town Hall, Committee for Justice President Curt Levey attempted to define this ubiquitous phrase, as well as its supposed dangers in an article titled “Holding the Line.” In it, he classifies five distinct forms of “judicial activism” and eight reasons why they are dangerous. Of course, Mr. Levey’s list focuses solely on those trite conservative talking points and social hot button issues that are designed to rally their base while masking their true agenda of rolling back rights and protections for ordinary Americans. Still, considering the apparently imminent threat that these liberal justices pose to our nation, we thought it only prudent to examine his allegations further.
Activism’s Fab Five
- Construing Black as White: Mr. Levey defines this “most blatant form” of judicial activism as an attempt to “conclude precisely the opposite of what the relevant statutory or constitutional provisions require.” To illustrate this, he references a First Circuit decision concerning Title IX, and that oft feared liberal principle: quotas. Of course, when the Supreme Court completely disregarded congressional intent by gutting Title VII protections in Ledbetter v. Goodyear, we didn’t hear any gnashing of teeth from Mr. Levey.
- Twisting Doctrines Beyond Recognition: Apparently this form of activism involves mangling Constitutional clauses, particularly the Establishment Clause. Mr. Levey references decisions banning school prayer (long a victim of liberal ire) to further illustrate his point. We can’t help but wonder, however, if he would feel the same way if, say, his child were made to perform Salaat, the Islamic ritual prayer, each morning before class.
- Inventing New Rights: Oh, that favorite whipping child of ultra-conservative thought – the formation of so-called “new rights" (although last time we checked, liberty and equality weren't new rights). Of course, when the Supreme Court completely disregarded 200 years of precedent and reinterpreted the Second Amendment as a guarantee of an individual (as opposed to a collective) right to “bear arms,” Mr. Levey and his colleagues simply viewed it as the correction of a two-century injustice.
- Ignoring Old Rights: Apparently, a court’s determination that tradition doesn’t necessarily inform law displays a blatant disregard for, what Mr. Levey views as, established “rights.” To illustrate his point, he highlights a Massachusetts court decision stating that LGBT groups cannot be banned from participating in St. Patrick’s Day parades, arguing that “the court had no use for the First Amendment’s guarantee of freedom of expression and assembly.” And it seems Mr. Levey has no use for the Equal Protection clause.
- Playing Policymaker: This most vile form involves “activist judges imagin[ing] themselves to be policymakers.” Of course, the clearest example of this, in Mr. Levey’s eyes, is that most hated of liberal court activism, Roe v. Wade. It seems odd then that Mr. Levey and his ilk have turned their backs on what he claims is the method provided by the Framers to deal with Constitutional questions – the amendment process – in favor of simply appointing hyper-conservative judges that will overturn the 1976 decision. And, of course, never mind conservative judicial activism like decisions that have eliminated laws establishing gun-free school zones, fair labor standards and violence against women, among many others.
We would discuss the eight “dangers of judicial activism” listed in the article but we feel we’ve made our point (and are getting a bit tired of pointing out Mr. Levey’s many hypocrisies). Movement conservatives, like those who belong to the Committee for Justice, portray themselves as protectors of the Constitution: crusaders for justice only interested in saving us from ourselves. But the truth is, they have their own (and rather widespread) agenda – packing the federal judiciary with like-minded ideologues that will force their political agenda on the rest of us.