Monday, December 13, 2010

FRC on judicial activism and Constitutional heroism

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Chart: “Judicial Activism of Supreme Court Judges” showing right-wing judges voting more often on average to overturn existing federal law or regulation
Judicial activism of Supreme Court judges (somewhat related, always enlightening)
[source | full size (380×400)]

It can sometimes get a bit complicated to figure out whether the Right will declare a court ruling striking down some federally enforced law to be righteous or “judicial activism”. Here’s Kyle at Right Wing Watch with a handy little guide:

When a federal judge declared the military's ban on openly gay soldiers to be unconstiutional, the Family Research Council blasted it as unconscionable judicial activism:

This is the very definition of judicial activism -- when you are unable to achieve your desired policy goals through the democratic process, simply go to court and get a judge to decree that it must be so.

Today, a right-wing Bush-appointed judge declared that a key portion of the health care reform legislation was unconstitutional, and FRC hails him as a hero:

"We applaud Judge Hudson for striking down the individual mandate recognizing that no part of the Constitution empowers the federal government to command American citizens to spend their own personal money to purchase health insurance.


"We call on the incoming Congress to quickly move to repeal this unconstitutional law in its entirely not merely to tinker with various provisions. Such tinkering would likely doom the legal challenges that are the best hope for dooming this fundamentally flawed law that is a high taxing, poorly thought out, and taxpayer funding of abortion monstrosity."

See? It’s all very simple: If the law being ruled against is something Rightists approve of, then it’s another case of a self-righteous activist judge legislating from the bench. But if they hate that federal policy, then the ruling is a heroic defense of Constitutional principles. (Never mind the fact that both of these rulings are identical in how they were carried out – a judge declaring that some government-enacted policy is unconstitutional based on his/her own interpretation of Constitutional law. What matters is the outcome, not the procedure and thinking behind it!)