Robert A. Levine 5-29-12
For decades conservatives have been assailing the courts for judicial activism, claiming the bench
has been shaping or creating laws that override or ignore the intent of state legislatures, Congress and the Constitution. With judicial activism, the courts thwart the power of elected bodies to legislate, by ruling laws unconstitutional. This is the antithesis of judicial restraint, where the Courts accede to the elected branches of the government and uphold the laws they have enacted, giving them the benefit of the doubt when questions have been raised. Critics also note that precedents may be disregarded when the Courts attempt to legislate. However, now that the Supreme Court has tilted to the right, conservative voices are no longer being lifted against recent judicial activism, but praise the Court’s decisions.
A cry against judicial activism came from Southern conservatives when the Warren Supreme Court in a 9-0 landmark decision in 1954, Brown v Board of Education, declared state laws unconstitutional that authorized separate public schools for black and white students. The Court decided that these laws violated the Equal Protection clause of the 14th Amendment. This overturned Plessy v Ferguson which in 1896 had ruled in favor of state supported segregation. Subsequently, in 1973, in Roe v Wade, the Court struck down anti-abortion laws that had been
enacted by many states, by a 7-2 margin. Conservatives again saw this as judicial over reaching by the Court.
Since that decision, the Court has ruled a number of times limiting the scope of Roe v Wade with conservative approval. In 1980, it validated the Hyde Amendment, prohibiting federal funds from being used by indigent women for abortions. In Rust v Sullivan in 1991, it upheld regulations that banned abortion counseling and referrals from family planning clinics that received federal funds. In a number of other cases since, it has favored further restrictions on women’s rights to choose abortion. Since these rulings upheld state and federal laws, they could be considered judicial restraint rather than activism.
Other rulings by the Supreme Court have overturned local laws restricting use of guns and upheld laws that expanded gun rights. These decisions affirmed the conservative outlook of the Court, with judicial activism evident in the first instance when legislation developed by elected bodies was ruled invalid. Rulings narrowing the scope of the 1966 Miranda decision about a criminal suspect’s right to remain silent reinforced the Court’s leaning to the right, as did decisions regarding privacy, free speech and immigration.
However, the major manifestation of the Court’s conservative judicial activism came with its Citizen’s United ruling in 2010 that overturned decades of laws and precedents that had attempted to control campaign spending. Statutes had existed limiting corporate contributions in election campaigns since 1906, the most recent of which was the McCain-Feingold Act passed in 2002. This had been upheld by the Court in a 5-4 decision in 2003 in McConnell v Federal Election Commission. Then Citizens United overrode past precedent to strike down the provisions of McCain-Feingold that limited corporate spending in federal election campaigns, saying it went against the First Amendment that protected freedom of speech.
Conservatives had previously argued that judicial activism was only credible when protecting rights that were present in the text of the constitution, or if intent of the framers of the constitution had been evident. These criteria were not met in this bald act of judicial activism by the Court, unleashing Super PACs upon the country.
The question now remains how the Supreme Court will rule on the Affordable Care Act. Given the Court’s recent history of conservative judicial activism, it seems likely the justices will either find the entire Act or the individual mandate unconstitutional. When this decision is handed down, one can not expect any cries against judicial activism to come from the right.
Resurrecting Democracy
www.robertlevinebooks.com
For decades conservatives have been assailing the courts for judicial activism, claiming the bench
A cry against judicial activism came from Southern conservatives when the Warren Supreme Court in a 9-0 landmark decision in 1954, Brown v Board of Education, declared state laws unconstitutional that authorized separate public schools for black and white students. The Court decided that these laws violated the Equal Protection clause of the 14th Amendment. This overturned Plessy v Ferguson which in 1896 had ruled in favor of state supported segregation. Subsequently, in 1973, in Roe v Wade, the Court struck down anti-abortion laws that had been
Since that decision, the Court has ruled a number of times limiting the scope of Roe v Wade with conservative approval. In 1980, it validated the Hyde Amendment, prohibiting federal funds from being used by indigent women for abortions. In Rust v Sullivan in 1991, it upheld regulations that banned abortion counseling and referrals from family planning clinics that received federal funds. In a number of other cases since, it has favored further restrictions on women’s rights to choose abortion. Since these rulings upheld state and federal laws, they could be considered judicial restraint rather than activism.
Other rulings by the Supreme Court have overturned local laws restricting use of guns and upheld laws that expanded gun rights. These decisions affirmed the conservative outlook of the Court, with judicial activism evident in the first instance when legislation developed by elected bodies was ruled invalid. Rulings narrowing the scope of the 1966 Miranda decision about a criminal suspect’s right to remain silent reinforced the Court’s leaning to the right, as did decisions regarding privacy, free speech and immigration.
However, the major manifestation of the Court’s conservative judicial activism came with its Citizen’s United ruling in 2010 that overturned decades of laws and precedents that had attempted to control campaign spending. Statutes had existed limiting corporate contributions in election campaigns since 1906, the most recent of which was the McCain-Feingold Act passed in 2002. This had been upheld by the Court in a 5-4 decision in 2003 in McConnell v Federal Election Commission. Then Citizens United overrode past precedent to strike down the provisions of McCain-Feingold that limited corporate spending in federal election campaigns, saying it went against the First Amendment that protected freedom of speech.
Conservatives had previously argued that judicial activism was only credible when protecting rights that were present in the text of the constitution, or if intent of the framers of the constitution had been evident. These criteria were not met in this bald act of judicial activism by the Court, unleashing Super PACs upon the country.
The question now remains how the Supreme Court will rule on the Affordable Care Act. Given the Court’s recent history of conservative judicial activism, it seems likely the justices will either find the entire Act or the individual mandate unconstitutional. When this decision is handed down, one can not expect any cries against judicial activism to come from the right.
Resurrecting Democracy
www.robertlevinebooks.com
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