Sunday, June 15, 2008

Activist judges?

John McCain has flagged as a key part of his re-election strategy pandering to the "conservative right" in judicial appointments, especially appointments to the Supreme Court. He's using the standard code words - "activist judges" - to criticise judicial appointments that conservatives don't like, the implication being that conservative judges will somehow avoid "activism" and will stick to the letter of the Constitution.

What does it all mean? Shall we test it using the poster boys for judicial appointments during the reign of King George President George W. Bush, namely Justice Alito and Chief Justice Roberts?

Can you see where this is heading?

These judges are not activists, so say the conservatives and therefore it must be so. Which means that we can rest easy in the knowledge that they won't twist and turn the Constitution inside out to make it mean whatever conservatives want it to mean. Can't we?

They, not being activists, would never for example decide that the Federal Government can regulate the private, local consumption of medically prescribed marijuana under the powers granted it to regulate "commerce... among the several States" (the Commerce Clause) would we? After all, it involves neither commerce nor anything among the States so any other interpretation would be patently and wilfully absurd wouldn't it?

Oh, but they would and they have! It doesn't take a law degree to know that these men are full of it, that they are nothing more than unprincipled hacks who believe the end justifies the means, and that no principle is above delivering the outcome desired by those "conservatives" they owe allegiance to. Dare I say "ACTIVISTS!"

To prove my point, here's Alito in his dissent to the recent Supreme Court decision confirming that Guantanamo Bay detainees have the right to challenge their detention in a (real) civilian court:

... the decision "will almost certainly cause more Americans to be killed."

Hmm, looks to me like he's playing the part of politician, arguing the merits of the policy (not with real evidence or logic but with emotion and fear, but that's another story), rather than doing what a judge ought to be doing which is expressing a view on what the law is and the Constitution requires and nothing else.

So when John McCain says "I won't appoint activist judges" I can just hear my favourite character from my favourite movie reply:

You keep using that word. I do not think it means, what you think it means. (Inigo Montoya played brilliantly by Mandy Patinkin in The Princess Bride)

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