Judicial Activists Gone Wild - Rudy and the Federalist Society

[JollyRoger]

Once upon a time, in a state of mind far, far away (from reality), there existed a group of noble heroes known as the Federalist Society who expoused a dislike for the dreaded monster known as Judicial Activism. In fact, in a proclamation known far and wide the Federalist Society made known that it:

"is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

http://www.fed-soc.org/aboutus/

Then one day, as the noble heroes were partying like it was 1789, they brought in Sir Rudoph Giuliani, the leading contender of the Elephant Brigade to become the next Emperor of the land. Depite Sir Rudy's pro-choice and pro-gay record, none in the Federalist Society would claim that he had no clothes, as all had seen by now his extensive wardrobe and the gropings of the Donald that it had inspired.

So Sir Rudy, girded in pants for a change, expounded on his take on recent activities of the courts. Lo and behold:

He disapproved of Kelo v. New London, an opinion by Justice John Paul Stevens holding that it was up to state and local legislators, not courts, to decide whether to condemn property for an economic redevelopment plan. But he enthused over Parker v. District of Columbia, an opinion by U.S. Circuit Judge Laurence Silberman that struck down the D.C. City Council’s restrictions on gun ownership (the district has an appeal pending at the Supreme Court) and Parents Involved in Community Schools v. Seattle School District No. 1, which threw out voluntary integration plans adopted by local school boards

http://blogs.wsj.com/law/2007/11/16/more-from-the-federalist-soc-dinner-rudy-not-a-kelo-fan/

Three big swings by Judicial Activism at poor Local Government. Three direct hits. Three cheers from Rudy and the Federalist Society. A little bit of legislating from the bench and everybody can live happily ever after.

What is the moral of this story?

That Judicial Activism swings both ways and sometimes that can be a turn on. Just make sure the toe tapping is coming from the right instead of the left.

 

[Fifty]

From what I've read on adjudication, it seems to me that respectable judges (e.g. Richard Posner) consider the whole idea that there is such a thing as not being an activist judge at the highest levels just silly.

 

[JollyRoger]

From what I've read on adjudication, it seems to me that respectable judges (e.g. Richard Posner) consider the whole idea that there is such a thing as not being an activist judge at the highest levels just silly.

Some people like to think of being a judge as similar to being an umpire and that there should be no subjectivity involved. That works when the "pitch" is a clear ball or strike (the Supreme Court issues more unanimous decisions than 5-4 decisions), but once you start getting to the edge of the strike zone, even an umpire's propensity to call a ball or a strike is going involve some subjectivity. A good number of cases at the higher levels are at the edge of the zone and you can get two 5-4 splits on the same day where 5 see free speech rights for corporations but not for students and 4 see just the opposite. Were all 9 being inconsistent activists on such a day? I'm sure you can get some to agree that 4 or 5 of them were, but not all 9.

I just thought it was funny, given the audience, Rudy's selection of cases that he agreed or disagreed with. Couldn't he find just one where he thought it should have been the local government's call instead of a judicial call?