The ‘Judicial Activism’ Worm Turns. Again.

The ‘Judicial Activism’ Worm Turns. Again. January 5, 2015

The New York Times has an article about the Republican party increasingly turning to the courts to push their agenda and get laws they don’t like overturned, and the Democrats using the same empty rhetoric against it that the Republicans have long used. It’s all “judicial activism.”

As Republicans prepare to take full control of Congress on Tuesday, the party’s leaders are counting on judges, not their newly elected majority on Capitol Hill, to roll back President Obama’s aggressive second-term agenda and block his executive actions on health care, climate change and immigration.

On health care, Republicans in Washington have sued the president and joined state lawsuits urging the Supreme Court to declare major parts of the Affordable Care Act unconstitutional. On climate change, state attorneys general and coal industry groups are urging federal courts to block the president’s plan to regulate power plants. And on immigration, conservative lawmakers and state officials have demanded that federal judges overturn Mr. Obama’s plan to prevent millions of deportations.

Democrats say the legal moves reflect a convenient turnabout for the Republican Party and a newfound willingness to seek an active role for the judiciary when it benefits conservative policy goals.

“What they cannot win in the legislative body, they now seek and hope to achieve through judicial activism,” said Representative Gerald E. Connolly, Democrat of Virginia. “That is such delicious irony, it makes one’s head spin.”

Ah, but the irony cuts both ways. The term “judicial activism” actually goes back to the 1930s and it was used by liberals to criticize conservatives who were filing lawsuits to stop legislation passed as part of FDR’s New Deal agenda. Then in the 1950s, the two sides exchanged scripts and the Republicans started railing against “judicial activism” and demanding “judicial restraint” while the Democrats praised the Warren court for striking down legislation more often.

This phrase is meaningless tripe and it should be retired forever, from either side.

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