Judicial activism awards fixed!

As Smith Barney might put it, the epithet of "liberal judicial activism" has acquired its stigma the old-fashioned way: It's earned it.

For several decades now, the courts have overridden the efforts of American citizens to enact policies through their local, state and national legislators on a broad range of matters that the Constitution leaves, wholly or largely, to the democratic processes. The courts have instead entrenched the left's agenda on such issues as abortion, the death penalty, pornography, marriage, criminal rights and radical secularism. This spate of liberal judicial activism has, in turn, triggered a broad reaction in favor of principles of judicial restraint, a reaction that is both legally sound and politically potent.

A cottage industry of liberal academics and commentators has arisen to try to defuse the charge of liberal judicial activism. But the arguments cobbled together by this cottage industry are shoddy. Consider the deep defects in the recent Op-Ed by Thomas J. Miles and Cass R. Sunstein, "Who are the bench's judicial activists?"

Miles and Sunstein breezily assert that run-of-the-mill cases reviewing the actions of federal administrative agencies, rather than "high-profile constitutional rulings," provide the best measure of which Supreme Court justices are most activist. That assertion is badly flawed.

First, unlike a Supreme Court ruling that finds a federal or state law unconstitutional, a ruling that invalidates federal agency action as contrary to statute does not end the political processes. On the contrary, Congress is free to revise statutory law to permit or even require the same agency action.

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