Supreme Court Justice Scalia doesn’t like judicial activism — except when he does like it


Of all the hypocrisies peddled by political conservatives, few are as ridiculous as their avowed antipathy toward so-called judicial activism.

This right-wing bugaboo arises from a principle called “judicial review,” which is the power of a court to review an act of legislation to see if it comports with the U.S. Constitution. For 210 years now, the Supreme Court has claimed the authority to void acts of Congress if they are seen to violate our national charter.

But whenever the high court exercises this authority to strike down an act of Congress that conservatives favor, a great cry arises that the justices have usurped the legislative role and are creating laws rather than just interpreting them.  They are said to be engaging in judicial activism.

A funny thing about this, however, is that the right-wingers don’t mind at all if the court voids certain laws they don’t like. For example, when the high court struck down several gun-control measures in recent years — measures that had been adopted by duly-elected lawmakers — nary a peep was heard about judicial activism.

But when the court upheld the Obamacare law last year, Michele Bachmann, among others, said it was “an activist court” — although it was exactly the opposite. She was disappointed because the court did not overturn a law that was duly enacted by the people’s representatives in Congress.

Of course, this whole thing about judicial activism is silly on its face. The only basis for overturning any law — whether it’s one that conservatives favor and liberals dislike or vice-versa — is that it arguably violates the U.S. Constitution. I say “arguably” because judges don’t always agree on the constitutionality (or lack thereof) of certain laws. Moreover, interpretations of the Constitution have evolved over the past 200-plus years. There have been cases, for example, in which what was eminently constitutional according to the courts of the 19th century was found to be fundamentally unconstitutional by the courts of the 20th or 21st centuries.

Which brings us to a speech Justice Antonin Scalia delivered yesterday in Montana, where he said the Supreme Court is overstepping its authority on matters that should be left to Congress or voters.

HERE‘s Jed Lewison’s snarky response to Scalia’s complaint:

It would be one thing if Scalia never, ever voted to reverse a law passed by Congress. That wouldn’t be the right thing to do, but at least he’d have a consistent position. But instead of doing that, he picks and chooses when to invoke the argument that the court should defer to Congress.

But as obnoxious as his whining can be, there’s a silver lining: It means he’s lost an argument. And when Antonin Scalia has lost an argument, that’s a pretty decent sign that something good is happening.



  1. Steverino

    Tony should quit and take up his dream job as a commentator for Fox News. He has no business serving on any bench. Ditto for Alito and Thomas.

  2. Brian Opsahl

    Thomas’s wife lobbys on behalf of republican think tanks all the time…but don’t look at him…?

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