SCOTUSblog on Judicial Review

[JollyRoger]

Power

You should decide now what kind of Supreme Court you want. Don’t wait until after the Justices hand down the Term’s major decisions. That will be too late. Make a real choice now about how much power you think the Court should have – before your judgment is skewed by either elation or outrage at the results.

The Justices are being asked to strike down important federal laws that passed Congress with broad majorities. Section 5 of the Voting Rights Act requires states and local governments with a history of discrimination to get approval from Washington for all changes to their voting laws and practices, no matter how minor. This historic, foundational piece of civil rights legislation was recently re-enacted almost unanimously. The Court previously upheld it. A ruling now going the other way would be quite “conservative.”

Section 3 of the Defense of Marriage Act (refusing to recognize state same-sex marriages for purposes of federal law) was enacted with broad bipartisan support, including from then-President Bill Clinton. At the time, very few people seriously believed it was unconstitutional. Striking it down would be a “liberal” move.

But here’s the thing. The challengers in the two cases are ideological opposites but have very similar constitutional theories. They say that the laws violate federalism. A state has a basic right to make rules about voting and to decide who among its residents is married. The federal government cannot lightly reject those decisions – or so the arguments in the cases go.

More broadly, all these cases invoke the same basic power: judicial review. It’s the authority – which the Supreme Court claimed for itself early in the nation’s history – to declare that a law passed by Congress (or a state) is void because it violates the Constitution.

But it is easy to treat decisions with which we disagree as a power grab, rather than principled judicial decision making. So when the Court strikes down laws of Congress or overturns prior precedent, we cry “judicial activism.”

That isn’t true or fair. Yes, some of the Justices are quite conservative and others are reasonably liberal. For several, it can depend on the issue. But having an “ideology” just means that the Justices have a principled approach interpreting the law. It doesn’t mean that they are trying to impose their will or worldview.

In fact, the judiciary – and the Supreme Court in particular – is the part of our government that seems to be working the best. The Justices disagree greatly about these important questions. But no serious and knowledgeable person doubts that they all work incredibly hard and in total good faith to try and figure out the right answer.

And sometimes, it seems, the Court stays its hand in favor of the other branches of government, which may be better at working out hard social problems. That is one way of looking at the Chief Justice’s vote in last Term’s health care case. That more modest approach may be a good response to very aggressive uses of judicial review by both liberals in the 1970s and 1980s and conservatives more recently.

But when we do disagree with the Court, it needs to be about the substance of the rulings. If we think DOMA or the Voting Rights Act is constitutional (or the opposite), we have to make substantive arguments and help the nation reach the right answer. And we have to do better than the claim that we think that the Constitution’s meaning just happens to track our personal sense of a fair society. Assuming we do need and want the Justices to have the power of judicial review, we can’t fairly complain that they are just activists.

http://www.scotusblog.com/2013/06/power/#more-165386

The entire post is worth reading. Remember kids - it's only judicial activism if you diagree with the outcome.

 

[kramerfan86]

I just wish all the justices were swing vote type justices so it felt more like true legal review and less like ideology.

 

[BvBPL]

Whatever. The court is just going to make up a bunch of nonsense to justify their politically based findings. Same as ever.

Any governmental body that can come up with a test based upon "distinct, investment-backed expectations" might as well be rolling on the floor, frothing at the mouth, and spouting glossolalia.