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Stare Decisis Their Ass: The GOP’s Activist Judges

| April 9, 2012

Antonin Scalia, chieft activist.

By Martin Dyckman

If the underlying issue weren’t so serious it would be great fun watching the Republicans spin on a dime to become passionate defenders of an independent judiciary.

Scorn for “activist judges” has been a staple of the party’s playbook ever since it was Earl Warren’s Supreme Court. Now that it’s John Roberts’s court–or should we say Antonin Scalia’s?–and a Democratic president is calling them out, the rhetorical roles have reversed overnight.

Wasn’t it just a month or so ago that Newt Gingrich was proposing to ignore decisions he didn’t like and arrest judges who refused to explain them?

And where on that occasion was Senate Minority Leader Mitch McConnell to decry “a fundamental lack of respect for our system of checks and balances?”

Let’s agree, however, that President Obama misspoke, as even he has acknowledged. It would indeed be one of the worst decisions in history for the court to overturn or eviscerate the health care act because Scalia thinks it ought to have been written differently. But it would be neither “unprecedented” nor “extraordinary.” The court has been overturning acts of Congress since Marbury v. Madison in 1803 and state laws since McCulloch v. Maryland in 1819. The Constitution is what the court says it is, even when the court is wrong.

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Some of those decisions, however, have been not merely wrong but also heedless of the vital principle of judicial restraint. Courts aren’t supposed to go out looking for fights to pick or to rule more broadly than necessary to resolve the cases brought to them. Above all, they should respect the policy decisions of the elected branches of government unless they are convincingly unconstitutional.

As Chief Justice William Rehnquist once said, “Conclusory second-guessing of difficult legislative decisions is not an attractive way for federal courts to engage in judicial review.” Quoting those words in the current New Yorker, columnist Jeffrey Toobin observed that the Roberts court “acts as a sort of supra-legislature, dismissing laws that conflict with its own political agenda.”

It did so most notoriously in the Citizens United case two years ago, which unleashed corporations to spend directly, without limit, to elect their friends and defeat their foes. That wasn’t even an issue in the case before the court, so the majority simply changed it to accomplish their political goals.

The court will be legislating again if it savages the Affordable Health Care Act. The unpopular mandate to purchase health insurance of your choice was an honest, essential attempt to compromise with the powerful lobbies resisting a one-size-fits-all single-payer plan like Social Security and Medicare. Comprehensive health care can’t work on a strictly voluntary basis any better than Medicare could. For the Supreme Court to reject that compromise could lead, ironically, to single-payer eventually becoming a reality. On the other hand, the court’s opinion conceivably could undercut even Social Security and Medicare, and that truly would be monstrous.

Obama’s preemptory strike on the court is a timely reminder of one of the critical issues at stake when we vote for president. We elect a new one every four to eight years, but their Supreme Court appointees serve for life. Andrew Jackson, who was devoted to the Union, nearly destroyed it by appointing Roger Taney, the chief justice whose Dred Scott opinion–a classic example of judicial overreach–brought on the Civil War by ruling that Congress was powerless to prohibit slavery in any territory. The two Presidents Bush campaigned as centrists but gave us radical activist justices whose promises to practice judicial restraint have so far proved false, and who may yet destroy what respect remains for their court.

We know what President Obama expects of his Supreme Court appointees. They have practiced judicial restraint, if–regrettably–mainly in dissent. What sort of people would Mitt Romney nominate?

Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times.

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14 Responses for “Stare Decisis Their Ass: The GOP’s Activist Judges”

  1. Outsider says:

    How disappointing; the author did not once mention “tax cuts for millionaires and billionaires.”

  2. B. Claire says:

    Wow…a joke yesterday, a reality today!

    ……“These 5 might as well have FOX ‘NEWS’ sewn on their robes like NASCAR sponsors!” ……..

    Scroll down to Supreme Court Justice John Roberts:

  3. Tim says:

    The author is completely wrong in his terminology.
    Judges creating laws or expanding the power of government is “judicial activism”.
    Judges deciding a law passed by congress is unconstitutional is what they are supposed to do and is not “activism”.

    • NortonSmitty says:

      Tim, just exactly how does a Judge create a law? And the judicial system was designed to limit the power of government against its own citizens. Only Conservatives think that insuring laws conform to the constitution and making the country actually enforce them is expansive.

  4. Memo Juez says:

    From TFA Above: “We know what President Obama expects of his Supreme Court appointees. They have practiced judicial restraint, if–regrettably–mainly in dissent.”

    Sonia Sotomayor actively advocated Legislating from the the Judicial Bench prior to being nominated to the Supreme Court. Obama is just as guilty as the Bushes.

    • B. Claire says:

      Memo Juez…

      Mrs. Ginni Thomas [Tea Party-Repeal Obamacare] was paid nearly $700,000 by the Heritage Foundation, Party “conservative think tank,” between 2003 and 2007, as well as an undisclosed amount by another lobbying group in 2009.

      Justice Thomas’ false statements on his financial reports, regarding his wife’s income certainly constitute a misdemeanor, and quite probably a felony, under federal law. (They would be felonies if he were prosecuted under 18. U.S.C. 1001, which criminalizes knowingly making false statements of material fact to a federal agency.

      He should have recused himself.

      • NortonSmitty says:

        The fact that the Fantastic Fascist Four on the court and their spouses and partners all earn hundreds of thousands in speaking fees to address Health Care industry groups, Lobbying organizations and right -wing think tanks makes our Supreme Court system a joke. Ginni Thomas’s blatant avarice is so bad this joke is not even funny. All three branches of Government have proven themselves so obviously corrupt as to be undeniably irreparable. Our vote is meaningless. Do we vote for the bought-off nutless wanna be in the Blue Sweater? “Are you kidding me? You know I am strictly a Red Sweater Poltroon voting man!”

        And even the local police all have automatic weapons and armored personnel carriers to use against our traditional pitchforks and torches. What is a patriot to do?

      • Think first, act second says:

        Thomas should get out because his wife in the course of her employment made money.
        Elena Kagan in the course of her employment, as Solicitor General of the O administration assigned members of her staff to attend meetings with members of the O administration on how ““to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending.”
        What about Scalia, he leans conservative maybe he should be recused because he doesn’t believe the law is constitutional.
        How can you say Thomas is anymore culpable than Kagan. Chief Justice said both should stay so it doesn’t matter what you and I think, it is settled who will decide.

  5. Outsider says:

    How about when the Massachussettes judges ordered the Mass legislature to draft a law allowing gay marriage? In another case, a Massachussettes judge order Christian children to be taught the gay agenda in public schools “in order to be engaged and productive citizens.” These are examples of activism by judges where they go beyond determining whether a law is constitutional or not, but they ordered specific laws to be created and enacted.

    • NortonSmitty says:

      What? It’s relevant and consistent, sarcastic and sharp and profanely offends right and left equally. It’s moi in other words

  6. Prescient33 says:

    The author shows his bias when he characterizes the HHS mandates as an “honest attempt” to compromise between those who support private insurance coverage and those (like the author) who want the single payer system. i.e., socialized medicine. If you followed the machinations that preceded the passage of Obamacare, or listened to Nancy Pelosi’s remarkable, “We have to pass the law so you can see what is in it,” you’d appreciated the inanity of his description of the efforts as “honest.”
    Victor Hanson puts it well in his column today, “For all the talk about the need for federal courts to audit errant state immigration legislation or to strike down the Defense of Marriage law, Obama does not believe in either an inactive or an active judiciary, only in one that parrots his own ideology. When jurists do this, they become sober and judicious; when they might not, then we hear an impromptu screed that Supreme Court justices are ‘an unelected group of people’ who should not ‘somehow overturn a duly constituted and passed law’ — ‘an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.’”
    Those fearful of SCOTUS doing its job, which is to review the constitutionality of an unprecedented Act of Congress that passed only with flagrant acts of bribery of the elected representatives by the POTUS (the Louisiana Purchase for one), are trying to inflame the uniformed masses with false and malicious rhetoric aimed at denigrating the SCOTUS, because they know, deep down, what they have done is wrong.

    • Think first, act second says:

      Well spoken, prescient33. Factual and directly on the issue not clouding it with innocuous outside rhetoric.

  7. Dorothea says:

    Stare Decisis

    By Tom Head, Guide

    Definition: Stare decisis (Latin: “stand by the decision”) is a legal phrase referring to the obligation of courts to honor past precedents.

    There are essentially two types of stare decisis. One is the obligation that trial courts have to honor the precedents of higher courts. A local trial court in Mississippi cannot legally convict a person for flag desecration, for example, because a higher court–the U.S. Supreme Court–ruled in Texas v. Johnson (1989) that flag desecration is a form of constitutionally protected speech.

    The other concept of stare decisis is the obligation of the U.S. Supreme Court to honor past precedents. When chief justice appointee John Roberts was questioned before the U.S. Senate, for example, it was widely believed that he does not accept the concept of an implicit constitutional right to privacy, upon which the Court’s decision in Roe v. Wade (1973) legalizing abortion was based. But he implied that he would uphold Roe despite any personal reservations due to his commitment to stare decisis.

    Justices have different levels of commitment to stare decisis. Justice Clarence Thomas, a conservative jurist who often sides with Chief Justice Roberts, does not believe that the Supreme Court is bound by stare decisis at all.

    While stare decisis is a helpful concept vis-a-vis the preservation of rulings that protect civil liberties, excessive commitment to stare decisis would have prevented such rulings from being handed down in the first place. We hope that conservative justices support precedents set by the anti-segregation ruling Brown v. Board of Education (1954) on the basis of stare decisis, for example, but if the justices who handed down Brown had felt similarly about the “separate but equal” pro-segregation precedent set in Plessy v. Ferguson (1896), stare decisis would have prevented Brown from being handed down at all.

    Pronunciation: “star-ray dee-sigh-sus”

    Also Known As: adherence to precedent; stare decisis is also similar, albeit not identical, to the concept of judicial restraint

  8. Judicial activism has been in the news for years. One would think it is a new issue but that is not true. Perhaps the most blatant example of judicial activism can be seen in the 1940 Supreme Court decision Cantwell v Connecticut which was a freedom of religion case. Cantwell held for the first time that the First Amendment which expressly stated that CONGRESS shall pass no law abridging freedom of Religion really meant that the STATES had no such power. From that decision nine members of the Federal government usurped the right of the various states to control religion, and took over control of religion. From that decision sprang Federal decisions concerning prayers in school, display of the Ten Commandments in public places, the whole One Nation Under God issue, reading the Bible in school, and ultimately extremely personal decisions about what consenting adults can or cannot do in their own bedrooms.

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