Freedom Line Blog

Last month, we explained why overturning ObamaCare’s individual mandate would not amount to “judicial activism” as liberals hypocritically contend.  Quoting Alexander Hamilton in The Federalist Number 78, we noted that, “The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”   For the Supreme Court to refrain from overturning the individual mandate due to timidity or political calculation would effectively erase the interstate commerce clause and its limiting principle out of the text of the Constitution, an act of supreme judicial arrogance and activism.

Writing in today’s Wall Street Journal, former Reagan and George H. W. Bush attorneys David Rivkin, Jr. and Lee Casey highlight another manner in which upholding, rather than overturning, ObamaCare’s individual mandate would constitute judicial activism.  Namely, because upholding it would eliminate any limiting commerce clause principle, courts would suddenly possess even greater future power to decide on an arbitrary case-by-case basis which federal laws satisfied their undefined discretion:

There is virtually no economically unrealistic regulation – that forces companies to produce goods nobody wants to buy, or sets artificial prices – that could not be salvaged at least in the short run by an offsetting purchase mandate of some kind…  Although the policy merits of various mandates could honestly be debated, there is simply no neutral, judicially enforceable basis on which courts can determine which prepayment mandates Congress can impose as a means of regulating future transactions and which it cannot.  In fact, if the courts were to scrutinize such mandates, as ObamaCare defenders suggest, striking down those they considered to be too onerous or preposterous (such as a “broccoli mandate”) the judges truly would be engaged in illegitimate judicial activism.”

Thus would Potter Stewart’s infamous “I know it when I see it” become the rule in every instance of potential Congressional overreach, and a tool for unrestricted future judicial activism.

If at first liberals don’t succeed, they plead their case to a friendly judge.  Last Friday, a Wisconsin judge granted a temporary restraining order to block publication of the state’s recently passed union law.  (State law requires the Secretary of State to publish the contents of the law to the public in order for the law to be valid.)

The law’s opponents claim Wisconsin Republicans violated the state’s open meetings law by negotiating the substance of the bill outside the normal committee hearing process.  The judge says all Republicans have to do is re-pass the bill with adequate notice (i.e. 24 hours instead of 2).

Where were these process-conscience Democrats when their federal counterparts rammed through ObamaCare while violating almost every legislative procedure?  Where was the outrage when the Reid-Pelosi gang used the budget reconciliation process and ‘deem-and-pass’ to thwart deliberation?  At least Wisconsin Republicans gave their absentee opponents a heads-up.

Three cheers for textualism rang out when an Illinois state appellate court ruled former Obama White House Chief of Staff Rahm Emanuel ineligible to run for mayor of Chicago.  CFIF previously highlighted Emanuel’s dubious residency claims.  Then, it was obvious Emanuel did not meet the 1 year Chicago residency requirement because he had been living in Washington, D.C.

Tellingly, no one disputes this now.  Instead, Emanuel’s defenders (including the Chicago Board of Elections) support the theory that a candidate’s intent to return should be read-in (i.e. judicially legislated) as an exception to the residency requirement.  The state appeals court had none of it.  In a straightforward opinion, a 2-1 majority ruled for textual integrity and struck Emanuel’s name from the ballot.  Of course, he’s appealing it to the state supreme court, but that shouldn’t deter that body from applying the same plain meaning of the statute to his situation.

No one is saying that Rahm Emanuel can never run for mayor of Chicago, just that he must comply with the legal standards for assuming the office.  If that’s too much to ask of Rahm, then maybe it would be too much to expect a faithful application of other laws once he’s in office.

Reason Magazine’s Damon Root pens a spirited argument for ridding judicial nomination hearings of their pretended denials of litmus tests.

It’s time for both sides to come clean about the importance of judicial philosophy. That means no more grandstanding about “open minds” and double standards. If Constitutional interpretation matters—and it most certainly does—then senators have an obligation to query each and every nominee about it and vote accordingly. That’s the only way we’ll ever have a real debate about the Constitution and the courts.

Indeed.  Now, if we could only get a few Senate Judiciary Committee members able to articulate a substantive, coherent judicial philosophy themselves we’ll be on to something.

That’s the point argued by UC Irvine law school dean, Erwin Chemerinsky, in response to the Supreme Court’s ruling yesterday restoring political free speech. He says:

But if judicial activism has any meaning, it surely refers to decisions that overturn laws and overrule precedents. In contrast, judicial restraint occurs when courts defer to the other branches of government and follow precedents.

While Chemerinsky makes a neat distinction, his argument hides the fact that liberals have stacked the deck in their favor. If it’s true that judicial activism is always characterized by deferring to other branches of government and following precedents, then once an activist decision departs from the norm it immediately becomes sacrosanct because it is now a precedent. And if conservatives want to avoid hypocrisy, then they must swallow hard and accept path-breaking precedent under the doctrine of stare decisis. That is, until their liberal colleagues decide that more heresy-turned-orthodoxy is warranted.

Liberals applaud themselves for eschewing precedent when they see fit, but then accuse conservatives of hypocrisy when the latter seeks to return the law to its understanding prior to the liberals’ departure. Only then do progressives make a pretense of respecting legal tradition under the guise of “super duper” precedents that serve their policy agendas.

Conservatives aren’t guilty of activism when they restore the law to what it was before. As George Will notes, announcing that the First Amendment protects political speech about the government is only radical because of the unconstitutional legislation and opinions about it over the last forty years. Chemerinsky is too smart not to know that; it’s just a whole lot easier to argue for selective adherence to stare decisis while reversing your opponent’s criticisms.