One of the myths fostered by the right wing is that liberal judges are activists and conservative judges are strict constructionists and only follow the law. The right wing froths at the mouth, painting judges they don’t like as trying to write new law through their judicial decisions. Yet as Jeffrey R Stone points out in an article in the New York Times entitled “Our Fill-in-the-Blank Constitution” conservatives are grossly misrepresenting the actions of conservative judges when the record is examined.
As Stone points out:
Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.
Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is.judicial activism
The right wing has done a good political job of framing the issue through its aggressive media advocacy to infiltrate and indoctrinate its message into the news media. The left has not been as successful. David Brock wrote a book a few years back entitled, The Republican Noise Machine Right-Wing Media and how it Corrupts Democracy, that details how the right wing came to be adept at getting their message out. The current manipulation of the Tea Party by Republican operatives like former House Speaker Dick Amery at Freedom Works is a current example of the resurgence of the Republican Noise Machine as a backlash against Obama.
Expect in the upcoming effort by President Obama to appoint someone to fill the US Supreme Court seat being vacated by Justice John Paul Stevens that the right wing will vigerously denounce any Obama nominee as too liberal and extreme and that the false mantra of judicial activism will be brought up with any prospective nominee involved in decisions not supported by the right wing. Keep the Republican Noise in perspective and realize that the volume of noise by the Right Wing, including the so called Tea Party folks, in no way is a valid measure of the truth.
As Media Matters notes in an article entitled “Right-wing media demonstrate “judicial activism” by urging landmark healthcare bill be overturned by courts”, it is the right wing that is practicing judicial activism.
A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled “conservative” were among the most frequent practitioners of at least one brand of judicial activism — the tendency to strike down statutes passed by Congress. Those most frequently labeled “liberal” were the least likely to strike down statutes passed by Congress.
A 2007 study by Cass R. Sunstein (subsequently named by President Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism — the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court’s “conservative” justices were the most likely to engage in “judicial activism” while the “liberal” justices were most likely to exercise “judicial restraint.”