Tuesday, November 22, 2005

What's so wrong with judicial activism?

Conservatives complain about judicial activism all the time. It came up most recently with the Terri Schiavo case, probably because the court simply didn't rule the way DeLay and the religious right wanted. But generally whenever issues like abortion and homosexuality are discussed, the specter of judicial activism is raised by Republicans. They cite cases like Roe v. Wade and Lawrence v. Texas. And now the Bush's Supreme Court nominations, John Roberts, the short-lived Harriet Meyers, and Scalito (oops. I mean Alito. aka. I'm a sell out - rearrangement of Samuel Alito), the topic has resurfaced again. But is judicial activism really that bad? Perhaps having the judiciary take "active positions" on items allows the country to make the right decisions on topics that are either overly politicized or that the public is not ready to make.

One case in point is Brown v. the Board of Education, which ruled that "separate is not equal" and effectively provided the Civil Rights movement with the legs it needed to end of segregation and discrimination. The real question is whether or not the American public was ready to address the issues of discrimination, race relations, and segregation in 1954. Given that major Civil Rights legislation was not passed (as in by Congress) until the 1960's, Brown v. the Board of Education was clearly "legislating" and based on their arguments and interpretation of the constitution many have suggested this as a case of extreme "judicial activism". But was it the wrong decision? No one can say no to that. I don't mean to suggest that judges should create new laws as they please, but controlled "judicial activism" could be a good thing.

Also interestingly, Bush won in 2000 on a Supreme Court decision. Since when the Supreme Court was given authority to appoint a President is news to me. In light of this, it seems odd that Republicans are so averse to "judicial activism" it has helped them seal their position of power in Washington for over the past 5 years.

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