Are the conservatives on the U.S. Supreme Court “judicial activists” ? offering a mirror image of the liberal justices who spent much of the 20th century inventing rights out of thin air to justify their policy preferences?
Historian Kevin Gutzman addresses that issue in Human Events:
In recent decades, complaints about activism have often focused on judicial decisions overturning established precedents. But does that mean that striking down precedents is activism?
In 2008, for example, the Supreme Court for the first time banned capital punishment for child rape. Child rape, reasoned Justice Anthony Kennedy, is not that bad an offense. Therefore, capital punishment would be cruel and unusual.
Here was a perfect specimen of judicial activism. Never had the court said that capital punishment in such cases was precluded by the 8th Amendment. There is no indication that it was considered ?cruel and unusual? in 1791, when the 8th Amendment was ratified. And despite Kennedy?s claim, several states and Congress had recently adopted such laws, which proves that there is no societal consensus even now that such laws are cruel and unusual.
Judicial activism of the type Americans generally dislike is not simply striking down statutes or overturning precedents. Rather, it is judging that ignores the obligation to put the Constitution before one?s own preferences.
If a judge overturns an incorrect precedent, he is not engaged in activism. If he strikes down an unconstitutional statute, he is not engaged in activism.
You might be interested in learning more about Gutzman’s historical interpretations. You can read his Politically Incorrect Guide to the Constitution or Who Killed The Constitution? You also can watch a clip from a 2008 Carolina Journal Radio interview.
