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December 11, 2003

Conservatives and "Judicial Activism"

For conservatives, judicial activism is any decision they don't like.

That's the only conclusion you can have reading pieces like this by John Fund in the Wall Street Journal:

Justice Sandra Day O'Connor more or less completed her ideological journey toward judicial activism yesterday when she cast the deciding vote upholding the McCain-Feingold restrictions on campaign speech... And, of course, Ms. O'Connor wrote the court's opinion this year upholding the use of race in university admissions in the University of Michigan case. (emphasis added)
Here Fund is complaining that O'Connor didn't second guess the Congress on McCain-Feingold and didn't second-guess Michigan on use of affirmative action.

What defines restraint more than deferring to the judgement of the elected branch?

Not that O'Connor isn't an activist in many decisions, but definitely not here.

Why can't conservatives just honestly admit they want activism by judges for fundamental values they cherish? Conservatives like unelected judges overturning democratic decisions they don't like, just as many liberals like the same when legislatures pass laws they don't like.

There's plenty of philosophical support for such judicial activism. I personally disagree with almost all of it, for both conservative and liberal causes, but I find this conservative hypocrisy on the issue ridiculous.

Posted by Nathan at December 11, 2003 10:16 AM