Everyone loves activist judges — sometimes

Even Newt Gingrich and Rick Perry

For decades, a consistent Republican refrain has been that activist judges are trouble.

Republican candidates often pledge that, if elected (or re-elected), they will not support activist judges.

They say that judges exist to interpret, not make the law, and they decry cases like Roe v. Wade, in which the Supreme Court threw out a state law because, in the majority’s view, the law was in conflict with the Constitution.

As a policy matter, it’s clear that the Constitution’s supremacy clause and hundreds of years of jurisprudence enable federal courts to assess whether laws are in conflict with the Constitution. It gets complicated, though, since there are some areas of law which are up to states to decide. Whether examining state or federal laws, the Court has to look at past cases and judge in which domains the U.S. Constitution can trump laws passed by normal legislative processes in the states and the nation.

But as a political matter, something else is clear.

Everyone loves activist judges — sometimes.

Let’s just take two cases:

1. The Citizens United case is widely held to be one of the most activist case in recent decades. In this decision, the Supreme Court declared that corporations are people and overturned large parts of the McCain-Feingold campaign finance law. It also overturned precedents going much further back.

Yet, in this short film prepared in honor of the first anniversary of the Citizens United decision, Mr. Gingrich praises the decision as “remarkable” and notes that the case was “originally narrow” but Chief Justice Roberts called for arguments relating to a “broader understanding.”

2. Governor Rick Perry of Texas, known for being a strong advocate for states’ rights, recently learned that he would not be on the Virginia Republican primary ballot because his campaign had not gathered enough signatures.

Does he respect Virginia’s right to set its own laws on ballot access? No. Governor Perry “filed suit in federal court. . . aimed at overturning the Virginia law governing access to the state Republican primary ballot, saying his failure to meet the ballot requirements will rob Virginians a chance to vote for him.”

One more thing: If the Supreme Court was to overturn all or part of the Affordable Care Act (aka Obamacare), does anyone think Perry or Gingrich would decry activist judges? Of course they wouldn’t. It’s terribly clear that both like conservatives overturning laws with which they disagree. Their beef isn’t with judicial activism but with particular laws they dislike.

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Amy Fried

About Amy Fried

Amy Fried loves Maine's sense of community and the wonderful mix of culture and outdoor recreation. She loves politics in three ways: as an analytical political scientist, a devoted political junkie and a citizen who believes politics matters for people's lives. Fried is Professor of Political Science at the University of Maine. Her views do not reflect those of her employer or any group to which she belongs.