Michael Tanner‘s latest column at National Review Online rebuts the notion that a Supreme Court decision to strike down the federal health care reform law would amount to inappropriate judicial activism;
Of course, there is nothing really unprecedented about the Court striking down legislation that it finds outside of constitutional bounds. Between 1803 and 2002, the Supreme Court struck down as many as 1,315 laws on constitutional grounds. Indeed, many of the judicial decisions that liberals hold most dear involved striking down legislation. For liberals to now argue that legislative action has become inviolate is pretty much the height of chutzpah.
To some extent, though, conservatives are simply being hoisted on their own hypocritical petard. After all, opposition to “activist judges” has become a standard part of conservative boilerplate. It was only a few weeks ago that Newt Gingrich was winning plaudits for his threat to haul recalcitrant judges before Congress and pledging that he would simply ignore Court rulings with which he disagreed. And, when the courts struck down California’s Proposition 8, many conservatives were apoplectic at the idea that a court could overrule the democratic will of the voters. An entire generation of conservatives have seemed to echo Robert Bork’s call for deference to legislative majorities in nearly all circumstances and dismiss the Ninth Amendment’s description of unenumerated rights as a mere “inkblot.”
For both sides, judicial activism has come to mean “any Supreme Court decision that I disagree with.”
Actually though, don’t we want an active or engaged Court when it comes to upholding our constitutional rights and guarantees? Obviously courts should not invent “rights” out of whole cloth, or substitute their views for that of the Constitution. But, the Founding Fathers understood that sometimes legislatures go too far, that there will be a temptation to exceed the proper powers of government. When they do so, it is the proper role of the courts to rein them in.
