Griper Blade: The Activist in Chief

With the nomination of Sonia Sotomayor rolling along, the phrase "judicial activism" is being thrown around a lot. It's actually pretty hard to define, since it seems to apply only to liberal, moderate, or even insufficiently conservative judges. Judicial activists "legislate from the bench," handing down decisions that overturn law or have the effect of creating new laws. The problem here -- at least, if you listen to the people who use these phrases -- is that none of this is constitutional. But the problem with this reasoning is that the Constitution allows it. In fact, it's the job of judge on a Court of Appeals or a Supreme Court to weigh the constitutionality of law and to rule in cases were the law is unclear or fails to cover the situatation. If their favorite example, Roe v. Wade, which struck down laws banning abortion was judicial activism, so was Loving v. Virginia, which did the same for laws banning mixed race marriages. The courts are where you turn for justice when legislation fails to provide it. If you believe a law is unconstitutional, you go ahead and sue to have it overturned. You may win, you may lose. That's the way this whole justice system thing works, because that's the way this whole justice system thing was designed to work.

What people who use the term "judicial activism" argue is that the judicial branch is encroaching on the legislative branch. There's a clear separation of powers and having judges "legislate from the bench" violates it. That's the argument anyway. The truth is that these people don't like losing games and want to blame the referee. As I said, you may win, you may lose -- they're not extremely happy with that "you may lose" part.

But is the judicial branch the only branch of government capable of usurping the responsibilities of other branches? Obviously not. And you've got to wonder where these people were when the Bush administration was pushing it's theory of the "unitary executive." With the use of signing statements, Bush gave himself the power to enforce only those laws he believed were constitutional. The test of constitutionality is the job of the courts, not the president. This is why Bush was responsible for so few vetoes -- why risk an override by congress when you can just add a note to the law that says, "Yeah, I'm not going to do that?" Just sign it into law, then create a signing statement saying it's bad law and you're not going to use it or that you're going to interpret it in a way that's clearly contrary to the law's intention. Call it "legislating from the Oval Office."

But that isn't the only way Bush abused the unitary executive theory. When it came to torture, when it came to illegal wiretaps, when it came to the detention of terrorist suspects, Bush became not just a legislature unto himself, but a judge and jury. In the case of Dick Cheney's hit squad, the executive became legislature, judge, jury, and executioner... [CLICK TO READ FULL POST]