Those Activist Judges

Republicans have always loved vilifying judges as "activist" whenever decisions issued that seemed too "liberal." In the last ten years, some have even gone to one key element of their base, the fundagelicals, and had them sponsor rallies against such judicial independence. "Activism" that is practiced by conservative judges, however, is apparently perfectly all right. The prime example of the acceptable activism can be found in recent decisions of the US Supreme Court, which (thanks to the timidity of the Democrats in the 109th Congress) now has a conservative majority. An article in today's NY Times makes it clear that this kind of "activism", which involves the disregard of precedent, may very well shape at least the next decade in this country.

Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. assured their Senate questioners at their confirmation hearings that they, too, respected precedent. So why were they on the majority side of a 5-to-4 decision last week declaring that a 45-year-old doctrine excusing people whose “unique circumstances” prevented them from meeting court filing deadlines was now “illegitimate”?

It was the second time the Roberts court had overturned a precedent, and the first in a decision with a divided vote. It surely will not be the last.

...the question is not whether the Roberts court will overturn more precedents, but how often, by what standard and in what terms. [Emphasis added]

Among the issues this Supreme Court will be facing in the near future are campaign finance reform, the standing of taxpayers to file suit against the federal government for failure to uphold the separation of church and state, and, of course, abortion rights. In all three areas, there are earlier Supreme Court decisions which stand as precedent. Those precedents have already decided the issues and are supposed to stand as the guiding principle for future cases when those principles arise. Precedents can be overturned, but only under very special circumstances. The most famous case to do so in my life time was Brown vs. Board of Education which overturned a line of cases which allowed for "separate but equal" treatment of African Americans. It was determined that it was time for this nation to turn away from governmentally endorsed racism.

The questions raised in the article and highlighted above are crucial. I fear that the answers will not be very happy ones for this nation.