Judicial Activism

Just watched 30 seconds of Toobin on C-Span. This short segment, again, confirmed my hunch that Toobin simply does not know or is distorting conservative legal arguments.

He's talking about the Supreme Court, and accuses conservatives on the court of activism. I'm only vaguely familiar with the case, but I'm pretty sure he's talking about Parent Involved in Community Schools v. Seatle School District NO. 1 et. al. The basic issue in the case is whether school districts can use race as a factor when deciding which students will go to which schools. The districts enacted a plan that was designed to help minorities integrate, encourage diversity, etc. In other words, this wasn't discriminatory, unless you also consider potential unintended consequences on minorities and the effect on displaced non-minorities.

Toobin says this decision, right or wrong, is activism because the court strikes down a democratically created system. The upshot is that conservatives, who rail against activism, are just as guilty of activism now that they control the Court. The only problem is that Toobin's definition of activism--striking down democratically created laws-- is not how conservatives define activism, nor should it be.

True activism occurs when courts goes beyond their constitutional powers. The Supreme Court, however, has had the power to strike down laws when they are inconsistent with the constitution since Marbury v. Madison, decided nearly two hundred years ago.

When conservatives argue for judicial restrain, they are simply arguing that, the Court must restrain themselves to plausible interpretations of the text of the constitution and statutes. Unfortunately, its quite easy to find Supreme Court cases where previously unknown "constitutional principles" appears out of thin air. Thus, when the Court says the constitution creates a right to abortion, despite the fact that the constitution says nothing about abortion, they are engaging in activism.

Returning to Seattle School Districts, the conservative judicial activism question is not whether the court is striking down a democratically created law, but whether that law is unconstitutional. If the law is unconstitutional then, contrary to Toobin's assertion, it is activism to allow the unconstitutional law to stand. Not using a power to allow an unconstitutional law to stand is just as much judicial activism as striking down a constitutional law out of a personal policy preference. The conservative touchstone is: What does the constitution require?

In Seattle School Districts, the conservative justices simply applied the 14th amendment. The justices interpret the fourteenth amendment to embody a principle colorblindness. Once race becomes a factor in a government program, the Court must strictly scrutinize that program to ensure that it is forwarding a compelling government interest. Here, the court found no compelling government interest, so the Court stuck down the law as unconstitutional. Agree or disagree, this is all pretty standard constitutional analysis.

But Toobin ignores this definition of activism; he instead takes a term of art and ascribed an entirely different meaning to it. Toobin then applies that meaning to conservative jurisprudence to show that conservative justices are being inconsistent or even hypocritical. The problem is conservatives have never spoused that principle, nor is that principle a good one.

Assuming that Toobin really doesn't know what conservatives mean by "activism" and isn't intentionally deceiving his audience, he has, once again, exposing himself as uniformed. Shouldn't a prominent legal analyst like Toobin know what conservatives mean when they use the word "activism"? It's not like Scalia and Thomas are keeping it secret.