All History A Palimpsest
A left-liberal meme I’ve been seeing a lot lately has been pushback against “conservative judicial activism.” The talking point, which I have seen repeated numerous times in various forums over the past several weeks, is to try to pin one of its own frequent complaints on the right.
Now even President Obama getting in on the act:
Speaking to reporters last evening on Air Force One, in the context of his upcoming Supreme Court nomination, President Obama warned of “conservative judicial activism.” “In the ’60s and ’70s, the feeling was, is [sic] that liberals were guilty of that kind of approach,” he said. “What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.” That error? “Not showing appropriate deference to the decision of lawmakers,” the AP reports.
This is an utterly typical example of the meme as I’ve seen it promulgated of late. As you can see, it goes well beyond the usual technique of crafting a strawman and then whacking it. Rather, it is positively Orwellian. “Judicial activism,” as it has always been understood, does not mean curbing the tendency of legislatures to overreach their Constitutional powers. It means subverting the will of the people by enacting policies from the bench that the people won’t let their elected representatives pass.
Cato asks exactly the right questions:
[W]hich “activist” decisions from the ’60s and ’70s does this former constitutional law instructor have in mind? Griswold v. Connecticut (1965), where the Court found unconstitutional a state statute criminalizing the sale and use of contraceptives? Loving v. Virginia (1967), the same, concerning inter-racial marriage?
In short, for all that it was insipidly typical of the meme, Obama made a hash of it. As Cato notes, the real purpose of this meme is not to suggest that Obama doesn’t think miscegenation laws should have been overturned but to prepare the battlespace for Constitutional challenges to the policies Obama, Reid, and Pelosi have managed to cram through the legislature.
Obviously they want to promote “deference” to the legislature now. But one tends to doubt that they felt, say, that Lawrence v. Texas was inappropriately “activist” simply because it lacked deference to the legislature. Nevertheless, despite the fact that this attempt to flip the concept of judicial activism on its head can’t survive even minimal scrutiny, expect to see a lot more of it now that it’s reached all the way to Air Force One.