Judgement at Heritage

Scholars at a recent Heritage Foundation lecture debated whether judicial activism is a “value-neutral” label for judges’ actions or an aspersion cast on some of their decisions.

Their comments were made in light of former Harvard University professor Cass Sunstein’s 2006 book Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. Sunstein was confirmed last year to head the Obama Administration’s Office of Information and Regulatory Affairs (OIRA); he taught at the University of Chicago at the time of publication.

“There are, broadly speaking, two accounts of judicial activism,” asserts Sunstein in Radicals in Robes.

“When people criticize judges as activist, they mean just this: The court is not following the right understanding of the Constitution,” he writes (emphasis in original). “To label a decision ‘activist’ is to label it wrong.”

“On a different account, the word ‘activist’ is purely descriptive, and a decision that is activist is not necessarily wrong.”

“People are free to use the term ‘activist’ however they wish, so long as listeners understand what they mean,” writes Sunstein. “… To reduce that risk and prevent confusion I suggest that it is best to measure judicial activism by seeing how often a court strikes down the actions of other parts of government, especially those of Congress.”

At Heritage, the Foundation’s Senior Legal Fellow Robert Alt argued, in contrast, that judicial activism is “properly understood” as “a sin both of omission and commission.”...

Sunstein is using a typical leftist trick—re-define a term to mean whatever they want it to mean in order to facilitate winning a public relations victory.

Judicial activism is no more or less than making law by decree from the bench.

Sunstein wants to re-define the phrase to refer to ANY judicial act that “strikes down” any act of the Executive, or especially the Legislative branch.

The problem with this view is that under the Constitution, the allowable actions of the Legislative and the Executive are constrained and limited, and the rights of the States and of the people are (or were supposed to be) unlimited except in those specific areas addressed by the Constitution.

The left and people like Sunstein get around that troubling little detail by simply pretending that the Ninth and Tenth Amendments simply don’t exist.

But the fact is (or should be) that each of the three branches of federal government are ALL constrained by the Constitution, and ALL THREE are equally responsible for constraining the other two branches from abusing their power and exceeding the authority granted to them by the Constitution. Members of Congress, judges, and the President all swear to uphold the Constitution.

One of our problems today is that the Judicial branch has arrogated to itself alone the duty of determining Constitutionality of the actions of the other two branches—essentially putting itself above the other two branches.

The road from that arrogation to a tyranny of the judiciary is a very short one.

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