Getting creamed in the polls on illegal immigration, the economy, inflation, Biden’s creeping senility, betraying Israel, and Kamala’s incompetence, Democrats are hanging reelection hopes on the abortion issue, a low priority for most voters and with the pro-abortion faction already committed to Democrats on most other issues anyway. Nonetheless, in a recent interview with the New York Times, Vice President Harris condemned the conservative Supreme Court majority for its 2022 Dobbs decision overturning Roe v. Wade. while she preposterously claimed, “This court has shown itself to be an activist court.”
True to form, Harris’s claim gets it exactly backwards. Judicial activism is just what conservatives have criticized liberal jurists for practicing. In fact, liberals have shrewdly defended that philosophy by disguising our founding document as a “living constitution.” A century ago, Harvard Law School Dean Roscoe Pound frankly and condescendingly advocated “putting the law in the hands of a progressive and enlightened caste whose conceptions are in advance of the public.” Justice Louis Brandeis called for a shift “from legal justice to social justice,” a term radical socialists like Bernie Sanders echo today. More recently, former Supreme Court Justice Stephen Breyer explained that “the court should apply the Constitution’s values with a pragmatic view toward present circumstances, rather than focusing only on the document’s historical meaning.”
Conservatives strongly oppose that notion which empowers imperious, leftist, unelected judges to usurp the role of legislators by falsely reinterpreting the Constitution and laws to achieve their desired political and social ends. The traditional conservative philosophy, followed by the current Supreme Court majority, is known as “originalism.” It means that the actual words and intent of the Constitution should be honored by jurists and not overridden by the personal beliefs of unelected philosopher-kings in black robes on the basis of what they believe the Constitution ought to say.
Justice Oliver Wendall Holmes, Jr. concisely exposed judicial activism for what it truly is when he calmly explained to an idealistic lawyer in his courtroom, “This is a court of law young man, not a court of justice.” In other words, the place to change or correct what you believe is an unjust law is through elected representatives in the legislature. The duty of judges is to rule on laws as written and intended in accordance with the Constitution.
If you believe the Constitution is unjust or outdated, the remedy is to amend it as prescribed in the Constitution, requiring a two-thirds vote in each chamber of Congress and ratification by three-fourths of the state legislatures. By the founders’ design, this shouldn’t be rash or easy. The Constitution isn’t just an ordinary statute passed by a simple majority. It’s the nation’s foundational document and appropriately requires revisions to be confirmed by a super majority of the people’s representatives.
Judicial activism, honestly defined, is a convenient shortcut increasingly exploited by Democrats in blue states and cities with compliant progressive courts. The same kind of places that elect district attorneys who refuse to prosecute shoplifters, auto thieves, thugs, rioters, and release repeat offenders without bail — all in the name of “social justice.” How can anyone be surprised when crime rates soar and career criminals flourish?
In order to contrive a federal right to abortion in its 1973 ruling in Roe v. Wade, a liberal SCOTUS majority invented out of thin air a so-called right to privacy in what they labeled as “the penumbra” of the Constitution. Penumbras occur in solar astronomy during an eclipse, not in the law. As a metaphor, a penumbra is defined as a vague area. But there’s no mention of privacy specified in the Constitution nor an absolute right to it. If there were, search warrants and IRS audits would be prohibited, and paparazzi could be barred from hounding celebrities. Objective Constitutional scholars have judged Roe to be a faulty ruling. Even Justice Ruth Bader Ginsberg, a reliable court liberal, concurred with that assessment. By voting to overturn Roe, originalist justices didn’t outlaw abortion they just decentralized it, returning this complex, controversial, divisive moral issue to each state to deal with as it aligns with the beliefs and values of its people.
No, it’s certainly not judicial activism when originalist jurists overturn unconstitutional rulings like Roe, strike unconstitutional laws, or overrule activist judges in lower courts. Kamala’s false claim is the equivalent of mistaking the cure for cancer with what caused it.
Longtime KOA radio talk host and columnist for the Denver Post and Rocky Mountain News Mike Rosen now writes for CompleteColorado.com.
