July 10, 2006 6:25 AM

Of course, it's not "legislating from the bench" if a Conservative does it, eh?

What Chief Justice Roberts Forgot in His First Term: Judicial Modesty

Judicial modesty is an intriguing idea, with appeal across the political spectrum. For all the talk of liberal activist judges, anyone who is paying attention knows that conservative judges are every bit as activist as liberal ones; they just act for different reasons. A truly modest chief justice could be more deferential to the decisions of the democratically elected branches of government, both liberal and conservative, and perhaps even usher in a new, post-ideological era on the court. That is not, however, how Chief Justice Roberts voted in his first term. He was modest in some cases, certainly, but generally ones in which criminal defendants, Democrats and other parties conservatives dislike were asking for something. When real estate developers, wealthy campaign contributors and other powerful parties wanted help, he was more inclined to support judicial action, even if it meant trampling on Congress and the states.

No one who’s been paying any sort of attetion at all has missed hsow Our Glorious and Benevolent Leader has politicized the federal judiciary- in particular the Supreme Court. Thus far, in the fidrst term of Chief Justice John Roberts and Justice Samuel Alito, Conservative ideologues have to be happy with the results. For Conservatives, the best news is that they can expect more of the same in years to come. By appointing relatively young Conservative ideologues, Our Glorious and Benevolent Leader has ensured that the newly Conservative Supreme Court will be the gift that keeps on giving long after he las left office.

Remember all of the whining we heard not so very long ago about “activist judges” who were guilty of “legislating from the bench”? We haven’t heard much of that lately, have we? And why would that be? Well, now that Conservatives finally have their dependable majority on the Supreme Court, they’re engaging in the same sort of behavior they accused “Liberal” judges of. Of course, it’s not “legislating from the bench” when your side is doing it, no? That’s just simple solid jurisprudence…not to mention the height of hypocrisy

The term’s major environmental ruling was a striking case in point. A developer sued when the Army Corps of Engineers denied him a permit to build on what it determined to be protected wetlands. The corps is under the Defense Department, ultimately part of an elected branch, and it was interpreting the Clean Water Act, passed by the other elected branch. Courts are supposed to give an enormous amount of deference to agencies’ interpretations of the statutes they are charged with enforcing.

But Chief Justice Roberts did not defer. He joined a stridently anti-environmentalist opinion by Justice Antonin Scalia that sided with the developer and mocked the corps’s interpretation of the law — an interpretation four justices agreed with — as “beyond parody.” The opinion also complained that the corps’s approach was too costly. Justice John Paul Stevens dryly noted that whether benefits outweighed costs was a policy question that “should not be answered by appointed judges.”

In an opinion on assisted suicide, Chief Justice Roberts was again a conservative activist. The case involved Attorney General John Ashcroft’s attempt to invoke an irrelevant federal statute to block Oregon’s assisted suicide law, which the state’s voters had adopted by referendum. Even though it meant overruling the voters, intruding on state sovereignty and mangling the words of a federal statute, Chief Justice Roberts dissented to support Mr. Ashcroft’s position.

Chief Justice Roberts voted against another democratically enacted, progressive law when the court struck down Vermont’s strict limits on campaign contributions. He joined an opinion that not only held that the law violated the First Amendment, but also engaged in the kind of fine judicial line-drawing — in this case, about the precise dollar limits the Constitution allows states to impose — that is often considered a hallmark of judicial activism.

Clearly, Chief Justice Roberts is no shrinking violet when it comes to imposing his views on the cases the Court has heard. This newly-Conservative Supreme Court has shown it’s willingness to be every bit the “judicial activists” that Conservatives have historically accused more “Liberal” judges of. Interesting how it’s perfectly acceptable to legislate from the bench when the decisions are going your way, isn’t it?

These cases make Chief Justice Roberts seem like a raging judicial activist. But in cases where conservative actions were being challenged, he was quite the opposite. When a whistle-blower in the Los Angeles district attorney’s office claimed he was demoted for speaking out, Chief Justice Roberts could find no First Amendment injury. When Democrats challenged Republicans’ partisan gerrymandering of Texas’s Congressional districts, he could find no basis for interceding.

The Roberts court’s first term was not radically conservative, but only because Justice Anthony Kennedy, the swing justice, steered it on a centrist path. If Chief Justice Roberts — who voted with Justice Scalia a remarkable 88 percent of the time in nonunanimous cases — had commanded a majority, it would have been an ideologically driven court that was both highly conservative and just about as activist as it needed to be to get the results it wanted.

Get used to it. y’all. Since 51% of you reflexively voted for Our Glorious and Benevolent Leader in 2004, you can pat yourselves on the back for creating a situation in which the Supreme Court could be stacked with young Conservative ideologues not afraid to go against the doctrine of stare decisis. Precedent no longer means what it used to, because now that the Court has a decidedly Conservative tinge to it, you can count on more judicial activism….except that when you’re a Conservative and you’re in control, it’s not called “judicial activism”. It’s just good old common sense jurisprudence.

Whatver….

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This page contains a single entry by Jack Cluth published on July 10, 2006 6:25 AM.

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