To any liberal readers out there, this is why we fear you (or hate you, depending on the day):
Last year this column argued that the term “judicial activism” has become a sort of all-purpose pejorative, that it ought to be retired as analytically useless. Geoffrey Stone, a law professor at the University of Chicago, has a Chicago Tribune op-ed that illustrates the point. He begins by offering his own definition of the term:
When a court exercises restraint, it generally defers to the judgment of the elected branches. Even in the face of a claim that a particular law violates the Constitution, the court gives the elected branches the benefit of the doubt and upholds the challenged law as long as it is reasonable. When a court engages in judicial activism, it second-guesses the judgment of the elected branches and invalidates the law unless the government can prove to the court that the law is clearly constitutional.
He then claims that “the central question in constitutional law is: When is judicial activism appropriate?” Here is how he answers:
The best answer, which is grounded in the vision of the framers and has been a central part of constitutional law for more than 70 years, is that judicial activism is appropriate when there is good reason not to trust the judgment or fairness of the majority. . . .
It is fundamentally misleading to equate activist decisions that protect the interests of corporations, the National Rifle Association and the wealthy with activist decisions that safeguard the rights of African-Americans, women, gays, political dissenters and persons accused of crime. The courts are needed to vindicate the rights of the latter. They are not needed to protect the interests of the former, who can protect themselves quite well in the give-and-take of the democratic process.
In other words, “activism” is appropriate, in Stone’s view, when he agrees with the result and inappropriate when he doesn’t.
In that February 2011 column, we quoted the original definition of “judicial activism,” from a 1947 Fortune article by historian Arthur Schlesinger Jr. It is the view that “the Court cannot escape politics: therefore, let it use its political power for wholesome social purposes.”
That is precisely Prof. Stone’s view. But he wants to eat his cake too, by denouncing decisions with which he disagrees as activism while using the same term to laud those with which he agrees. In its own weird way, the intellectual vacuity of today’s left-wing constitutional scholarship is impressive to behold.
Impressive, or chilling. To the Left’s way of thinking, there should be no checks or balances when their favored topics are up for discussion. They are right, anyone else is evil. Aggie and I have reported on this trend anecdotally (as have many of you), but to read this cold, intellectual defense of Liberal Fascism is actually scary. That the Left can justify what amounts to a suspension of the Constitution to pursue its passing fancies—and live very happily with itself—makes them monsters.