Talking Points: Activist Judges

Let’s get on message, and stay on message: John Roberts and Samuel Alito are the activists. Not Stevens, not Breyer, not Souter, not Ginsburg. As Justice Breyer put it, regarding the new conservative majority: “It is not often in law that so few have so quickly changed so much.”

Apparently McCain is taking his free time to pander to his base, arguing against Obama’s stance against the confirmation of Chief Justice John Roberts, and excoriating Hillary & Obama, along with presumably all other liberals, for favoring an “activist” judiciary, which apparently seeks to subvert the law, co-opting it into a liberal political machine. Who’s really co-opted the court? Let’s stop and think. Over the past year, the Roberts Court has…

• Almost overruled Roe v. Wade, sub silentio, by allowing legislatures to disregard the health of women when banning abortion procedures, upsetting a case not two years old, on the basis of sham science;
• Invalidated bipartisan campaign finance reform, while pretending that it did no such thing;
• Ended affirmative action implemented by a municipal legislative body in good-faith compliance with pre-existing federal law, and;
• Showed signs of ending 80+ years of allowing regulation of guns.

Who’s the “activist judge,” now? You may disagree with the policy of liberal jurists, but they are no more “activist” – and indeed, are arguably less so – than their conservative counterparts. This issue needs to be part of the election year discourse.

[Note: if you want this rant in video format, Boston Legal graciously put my long-held beliefs into some nice primetime drama. Or if you want it in book format, I could not more strenuously recommend Jeffrey Toobin's The Nine (buy it here - seriously).]

But seriously folks, this is a “talking point” of the Rush Limbaugh right which is easy to rebut. Aside from the plain fallacy of tarring the liberal minority as “activists,” there’s a good point to make that more of America is on the side of the liberals, when it comes to these issues.

Most importantly, let’s take abortion. This is probably more of a valence issue than we’re aware of. Democratic politicians seem almost unwilling to state that they’re “pro-choice” – recall John Kerry’s well-argued, if somewhat rambling, defense of his position in the 2004 debates. Yet, more than 50% of Americans, when polled, think that abortion should be legal in some cases. And this is all that Roe v. Wade actually protects. Roe does not recognize a right to an abortion in all cases, and it’s high time we highlight that point, and use it to take a principled, liberal position on the issue which balances the right’s concerns with our own.

This need not be the third rail of politics. McCain would scuttle the Roe right (which grants a right to choose in reasonable, regulated circumstances). Neither of our candidates would. And let’s be proud of that! At this point, it’s not activist – it’s the law, and it’s our history.