Is the Chief Justice a Judicial Activist?
Posted by Peter Lawler
Here’s an article that claims he may become one, although he’s been reasonably passive so far. The author cites as evidence two of Roberts’ dissents--one would have declared Oregon’s right-to-die law unconstitutional, the other would have sharply curtailed the authority of the EPA. It’s understandable why someone would have considered either of those decisions by the Court activist, although it does depend on your definition of activism.
8:51 PM / September 24, 2006
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It’s very late here on the left coast, nearly midnight. I would like to comment on this article tomorrow, but for now, I’d like to recommend La Shawn Barber’s article about judicial activism and the definition of "birthright citizenship" and, more importantly, her reference to this John C. Eastman article.
Prof. Eastman, in the article I cited above, had this to say about "birthright citizenship":
Congress’s power over naturalization is “plenary,” while “judicial power over immigration and naturalization is extremely limited.”
I would submit that Congress’s power is plenary and that of the judiciary is extremely limited over interpretation of each and every word and phrase of the Constitution.
So, applying that to David Savage’s LA Times (ptooy) article, Ayotte vs. Planned Parenthood: The Supremes say, in effect, New Hampshire’s law requiring parental notification of minors’ abortions is not unconstitutional, but consider making exceptions for emergencies. Applying Eastman’s principle to this scenario, what the Court did was exactly right and not "activism." (I think an interesting question would be what if the New Hampshire legislature thumbed its nose at the Supremes and said "thanks for the suggestion, we’re not going to do it.")
Gonzales vs. Oregon : Oregon’s "right to death law." This one was not really a constitutional law analysis, but a conflict of state legislation versus federal legislation analysis, so it doesn’t fit within the discussion regarding whether Roberts is an "activist," at least not in the constitutional law context.
Rapanos vs. U.S. Again, this case involved legislative analysis, not constitutional, having something to do with water running down hill (who’da known?). Because legislation is easily amended, judicial interpretation of legislation has, at least to my knowledge, never been described as "activism."
So, there you have it, my analysis of David Savage’s La La Times (ptooy) article. Roberts has not, as of yet, been an activist.
UG, Thoughtful and very plausible analysis. Thanks.