Why should conservatives not be hypocritical about what they label "judicial activism", when they're hypocritical about so much else?

Why should conservatives not be hypocritical about what they label "judicial activism", when they're hypocritical about so much else?

Nathan, I agree with you generally about judicial review. True "progressives" should not favor handing policymaking to unelected, unaccountable elites (i.e., judges). If that means we wait longer for gay marriage, so be it.

However, as I indicated in an earlier post, when legislators vote to restrict the ability of advocacy groups to run ads against them in the days before the race, I'm not so sure the Court should race to defer to the "wisdom" of Congress. :-)

John-- But that's not what McCain-Feingold does.

It requires those groups to set up PACs, without union or corporate general funds, that are free to run ads the day before the election, if they wish.

That may be a bit of a bureaucratic pain, but non-profits have all sorts of rules about segregating their lobbying and other activities, so this is nothing dramatic in the broad sense.

My basic belief is that McCain-Feingold is neither going to improve the situation that much as advocates claim, nor harm free speech in the ways its opponents argue. It will establish some accountability of spending the money and eliminate a bit of quid pro quo relationships between large soft donars and politicians.

But ultimately it's just not going to be that big and effect.

Nathan, they have no shame. They just make shit up and say it like it's the truth. This is just another example. My head would blow up, but there's just no more powder left.

The judicial activism question is always result-driven: liberals naturally hated it when the Supremes played the Fourteenth Amendment like a fiddle to strike down labour laws and the like.

But would they have loved a minimalist decision from a Vinson court on the school desegregation cases back in 1954? Not so much, I'd be guessing...

Although as I've argued, Brown v. Board did not overturn what a majority of the country wanted-- it actually fulfilled what majorities in Congress were pushing for, desegregation, but which couldn't pass in Congress because of the anti-majoritarian filibuster.

It wasn't even overturning democratic decisions in southern states, since those states were illegally disenfranchising black voters and violating "one person, one vote."

But even with all that, many people think Brown v. Board did little for progressive change in the end. See Derrick Bell and others on this point.

But the point here is at least intellectual clarity- whether you like judicial power or not, at least recognize when it's been exercised and when judges are (wisely in my opinion) restraining themselves and deferring to elected leaders.

Excellent post. A couple points:

1)Ken Starr apparently does the same thing in his book, calling Boy Scouts v. Dale and the sovereign immunity cases "judicial restraint." Oh.

2)What you say about Brown is also true of Roe--majorities wanted to reform abortion laws, but were thwarted by minorities (and the fact that the widely availabel grey markets in abortion reduced the incentive for legislatures to repeal the laws.)

Hasn't it ever been thus? Thurgood Marshall, whose greatest moment in a life full of them was arguably the overruling of Plessy v Ferguson, decried in anguish Rehnquist's invitation to vitiate stare decisis. Meanwhile, we now have Ashcroft et al. trumping states' initiatives on, among other things, medical marijuana, the death penalty and assisted suicide. Not to mention--hell, let's mention it--the overruling of a state supreme court on state election law in Bush v Gore.
It's always been about power. States' rights and judicial activisim arguments have always, and rather inconsistently, been in the service of a larger ideological agenda. Think of the Fugitive Slave Law in the 1850 Compromise, imposing unconscionable strictures on the freedom of the Northern states, applauded by all those Nullificationists down South.
And judicial activism arises out of a political vacuum. Again, think of Taney in Dred Scott,trying to resolve by judicial force majeure what the rest of the polity cound not. It's also worth pointing out that legislative inaction invites judicial activism, sometimes deliberately, deflecting from legislators the flak they would have attracted by actually committing themselves in public to change.
I wonder with you if, now that we've had the Rehnquist Court's example, those of us on the left would be quite so uncritical about the Warren Court's reasoning. I, for one, would continue to support it--it's hard to imagine American democracy without Baker v Carr, Miranda, Gideon, so many others--but more cautiously and with a view to the other edge on that double-edged sword. Meanwhile, keep reminding us that the righties are trying to resurrect Lochner...

Fund's an idiot. He apparently doesn't know his judicial activism from his judicial restraint.