4.20.2005
Psst ... Justice Scalia ... You Know, You're an Activist Judge, Too (NYTimes.com)
EDITORIAL OBSERVER
By ADAM COHEN
Published: April 19, 2005
Not since the 1960's, when federal judges in the South were threatened by cross burnings and firebombs, have judges been so besieged. Senator John Cornyn, Republican of Texas, set off a furor when he said judges could be inviting physical attacks with controversial decisions. And last week the House majority leader, Tom DeLay, called for an investigation of the federal judges in the Terri Schiavo case, saying ominously: "We set up the courts. We can unset the courts."
Conservatives claim that they are rising up against "activist judges," who decide cases based on their personal beliefs rather than the law. They frequently point to Justice Antonin Scalia as a model of honest, "strict constructionist" judging. And Justice Scalia has eagerly embraced the hero's role. Last month, after the Supreme Court struck down the death penalty for those under 18, he lashed out at his colleagues for using the idea of a "living Constitution" that evolves over time to hand down political decisions - something he says he would never do.
The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution's plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just fine when it advances their own agendas.
Justice Scalia's views on federalism - which now generally command a majority on the Supreme Court - are perhaps the clearest example of the problem with the conservative attack on judicial activism. When conservatives complain about activist judges, they talk about gay marriage and defendants' rights. But they do not mention the 11th Amendment, which has been twisted beyond its own plain words into a states' rights weapon to throw minorities, women and the disabled out of federal court.
(More ... The New York Times > Opinion > Editorial Observer: Psst ... Justice Scalia ... You Know, You're an Activist Judge, Too) ¶ 08:08
By ADAM COHEN
Published: April 19, 2005
Not since the 1960's, when federal judges in the South were threatened by cross burnings and firebombs, have judges been so besieged. Senator John Cornyn, Republican of Texas, set off a furor when he said judges could be inviting physical attacks with controversial decisions. And last week the House majority leader, Tom DeLay, called for an investigation of the federal judges in the Terri Schiavo case, saying ominously: "We set up the courts. We can unset the courts."
Conservatives claim that they are rising up against "activist judges," who decide cases based on their personal beliefs rather than the law. They frequently point to Justice Antonin Scalia as a model of honest, "strict constructionist" judging. And Justice Scalia has eagerly embraced the hero's role. Last month, after the Supreme Court struck down the death penalty for those under 18, he lashed out at his colleagues for using the idea of a "living Constitution" that evolves over time to hand down political decisions - something he says he would never do.
The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution's plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just fine when it advances their own agendas.
Justice Scalia's views on federalism - which now generally command a majority on the Supreme Court - are perhaps the clearest example of the problem with the conservative attack on judicial activism. When conservatives complain about activist judges, they talk about gay marriage and defendants' rights. But they do not mention the 11th Amendment, which has been twisted beyond its own plain words into a states' rights weapon to throw minorities, women and the disabled out of federal court.
(More ... The New York Times > Opinion > Editorial Observer: Psst ... Justice Scalia ... You Know, You're an Activist Judge, Too) ¶ 08:08
