June 29, 2007
A Decent Respect for the Opinions of the Lower Courts

It is a credit to the indifference and ignorance of the Americn public that conservatives have been able to make money on the claim that liberal judges are “activists.” Conservative ones, as any fool knows, are nonideological straightshooters whose only loyalty is to the Constitution.

This belief, at least among the talk radio set, has even survived the nakedly political attack on the Constitution made by the conservative wing of the Supreme Court in Gore v. Bush.

That assault on states’ rights seems to have evoked fleeting shame even in the court’s loudest wingnut, Antonin Scalia. Why else would he have taken care to point out that the majority’s grotesque power grab was not to be taken as a precedent in any future voting cases?

The Supreme Court’s whole business, after all, is the establishment of precedents. For that reason it typically extends great respect to decisions in legal areas where the lower federal courts are in solid agreement. Only an “activist” judge, you would think from listening to the Federalist Society crowd, would reach out to muddy waters that have long been settled in the lower courts.

Activists like John G. Roberts, Jr., Antonin Scalia, Clarence Thomas, Samuel A. Alito, Jr., and Anthony M. Kennedy. You want activism? Try this.

Months earlier, when Justice Sandra Day O’Connor was still on the court, the justices had denied review in an appeal challenging a similar program in Massachusetts. With no disagreement among the federal appellate circuits on the validity of such programs, the new appeals did not meet the criterion the court ordinarily uses to decide which cases to hear. It was June of last year before the court, reconfigured by the additions of Chief Justice Roberts and Justice Alito, announced, over the unrecorded but vigorous objection of the liberal justices, that it would hear both appeals.

The programs referred to are ones that attempt to correct racial imbalance in the Louisville and Seattle schools, in line with Brown v. Board of Education, decided when Eisenhower was president.

And you ain’t seen nothing yet. Roe v. Wade is still out there, waiting for a good dose of judicial inactivism.



Posted by Jerome Doolittle at June 29, 2007 08:46 AM
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Yes, I haven't heard anyone mention stare decisis, and this is the first commentary I've read that discussed judicial activism.

As for the wimps in the Senate who wouldn't filibuster Alito----

Posted by: Joyful Alternative on June 29, 2007 9:52 AM

Before you go into knee-jerking mode, you might want to take a look at Juan Williams' op ed in the Times today. At http://www.nytimes.com/2007/06/29/opinion/29williams.html

He must be know what he's talking about, right? I mean, he's black and he's on NPR and all.

Posted by: Nugatory on June 29, 2007 2:47 PM
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