The Washington Post Monday contains an article on judicial activism.  This article shows a subtle, but significant distortion in the definition of the term, so that liberals can attack the current Supreme Court as being dominated by conservative “activists.”  The Washington Post shallowly and erroneously defines “judicial activism” as a court striking down a law passed by Congress.  Is the Post seriously arguing that the proper role of courts is simply to affirm every law passed by Congress?  That is obviously wrong, and is not the definition of “judicial restraint.”  And there is an application of this wrong understanding of “judicial activism” to the university realm that I am concerned about.

Photo: Alliance Defense Fund / B. Ellefson

The Washington Post article uses its erroneous definition of “judicial activism” to point out alleged inconsistency in the way the Supreme Court dealt with two different Acts of Congress.  The article points out that the Supreme Court struck down part of the McCain-Feingold law regulating campaign contributions in the Citizens United case, but then upheld the act of Congress doing the land swap to convert the land where the Mojave cross is to private property in Salazar v. Buono.  The Washington Post then claims that the Supreme Court reveals its “conservative activism” when it deferred to Congress in the Mojave cross case, but did not defer to Congress  in striking down part
of the McCain-Feingold law in Citizens United.

I am wondering whether the writer understood the implications of his arguments.  ”Judicial restraint” is not having courts rubber-stamping everything Congress does.   Also, the term, “judicial activism” does not mean, “courts striking down any laws passed by Congress.”  The issue is whether Congress violated the Constitution when it enacted a specific  law, or not.     If an Act of Congress violates the Constitution and is challenged in court, the courts should strike it down.  If the Act of Congress is within the power granted to Congress by the Constitution, then the courts should uphold it when challenged.

“Judicial activism,” correctly defined is when a court makes up a new right that doesn’t exist in the Constitution, and then strikes down a law based on that concocted “right, ‘”or ignores a provision of the Constitution that clearly applies to the case before the court, and then imposes its public policy preference  through the judicial decision.  For example, in Roe v. Wade the Supreme Court manufactured a “right to abortion” by cobbling together bits and pieces of various constitutional provisions, and then claiming that ”emanations from the penumbras” of these provisions can be fused together into a “right of privacy” that covers abortion, and struck down Texas’ law regulating abortion.

Judicial activism also occurs when a court allows the government to do something the Constitution clearly prohibits the government from doing.  For example, in Kelo v. City of New London,   the Supreme Court allowed the city to condemn the private land of its citizens to sell to a private developer, even though the Fifth Amendment clearly states that the government may not take private property unless it is for a “public purpose” and only when the government compensates the private owners for their property seized by the government.

I am concerned that this wrongheaded definition of “judicial activism” could be applied to the universities.  Say some university officials enact a blatantly unconstitutional speech code or version of diversity training.  ADF or its allies sue to protect the First Amendment rights of the students that the new policy violates.  The judge has been reading the Washington Post, and becomes bamboozled by its concept of “judicial activism” and thinks, “I believe in judicial restraint. That means that I must uphold every policy enacted by the government, including the universities.  It would be ‘activist’ for me to strike down the speech code or diversity training plan.”

The government, including venerable institutions of higher education, can violate the Constitution.  When aggrieved people go to court asking for protection of their constitutional rights, it is not “judicial activism” for a court to rule in favor of the person’s individual liberties.  It is not “judicial restraint” to allow the government’s violation of the Constitution to continue. The proper exercise of judicial authority is to rule according to what the Constitution says, even if that means striking down some tyrannical governmental policies.

If the Washington Post wants to criticize the conservative justices on the Supreme Court as “activists,” it needs better evidence than that offered in the article yesterday.  And redefining the term “judicial activism” doesn’t help the debate.

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