The New York Times Redefines "Judicial Activism" To Besmirch Scalia and Thomas
This New York Times editorial, Activism Is in the Eye of the Ideologist, attempts to counteract the widespread criticism of “liberal activists” on the bench, by accusing the icons of judicial restraint, Antonin Scalia and Clarence Thomas, of being the real judicial activists.
The New York Times points to a study by Professor Lori Ringhand of the University of Kentucky College of Law. She supposedly uses a “reasonable, objective standard” (the words of the New York Times) to find that these conservative jurists are really the judicial activists! However, Prof. Ringhand uses a sleight of hand in her definition of “judicial activism” to muddy the waters of the debate and paint Justices Scalia and Thomas in a bad light. According to the New York Times she defines “judicial activism” this way: “justices were considered to have voted in an activist way when they voted to overturn a federal or state law, or one of the court’s own precedents.”
This is totally wrong. The Supreme Court does not engage in “judicial activism” when it reverses one of its own wrongly decided precedents such as Plessy v. Ferguson which was overruled by Brown v. Board of Education. The segregation laws violated the Constitution, so the Court declared them unconstitutional. “Judicial restraint” is not properly defined as “upholding every law passed by the legislature,” and “judicial activism” is not defined as just “striking down laws approved by the people.”
The issue is whether the text of the Constitution, as informed by the intent of its framers, allows the government to enact the law or not. Judges are to apply faithfully the Constitution to any law in question and decide whether it meets the constitutional standard or not. Sometimes the laws will pass muster and other times they will be struck down as unconstitutional. So when Justices Scalia and Thomas strike down a law, they show “judicial restraint” if they are accurately applying the text of the Constitution in a given case, even though they are nullifying a popularly-selected law. When other justices, such as John Paul Stevens or Ruth Bader Ginsburg vote to strike down a law, they could be demonstrating “judicial activism” if the text of the Constitution allows states to pass such a law, and the justices are making up a new right to limit government power.
The New York Times should not evoke a distorted caricature of judicial activism to cover up for judges who impose their personal POLICY views on an unwilling populace. This obscures the real debate over the judicial branch usurping legislative prerogatives.