Liberal Activism = Bad; Conservative Activism = A-OK

With all the heated rhetoric coming from the right over so-called "activist judges" (brought on, ironically enough, by their complaints that the judges hearing the Schiavo case -- which include ultra-conservative Bill Pryor on the 11th Circuit -- weren't activist enough), I thought this editorial from the New York Times on Justice Scalia was worth reading.

The author notes that Scalia has repeatedly said that his strict constructionist interpretation of the Constitution binds him from activist decisions and dictates how he must rule in each case, in contrast with those who favor a "living Constitution," who Scalia claims are susceptible to decision-making based upon the whims of the judge. But how to explain the revolutionary 11th Amendment jurisprudence that has flourished during Scalia's tenure:

Justice Scalia's views on federalism - which now generally command a
majority on the Supreme Court - are perhaps the clearest example of the problem
with the conservative attack on judicial activism. When conservatives complain
about activist judges, they talk about gay marriage and defendants' rights. But
they do not mention the 11th Amendment, which has been twisted beyond its own
plain words into a states' rights weapon to throw minorities, women and the
disabled out of federal court.

The 11th Amendment says federal courts cannot hear lawsuits against a
state brought by "Citizens of another State, or by Citizens or Subjects of any
Foreign State." But it's been interpreted to block suits by a state's own
citizens - something it clearly does not say. How to get around the
Constitution's express words? In a 1991 decision, Justice Scalia wrote that
"despite the narrowness of its terms," the 11th Amendment has been understood by
the court "to stand not so much for what it says, but for the presupposition of
our constitutional structure which it confirms." If another judge used that
rationale to find rights in the Constitution, Justice Scalia's reaction would be
withering. He went on, in that 1991 decision, to throw out a suit by Indian
tribes who said they had been cheated by the State of Alaska.

There is simply NO textual basis for interpreting the 11th Amendment as barring suits against states by citizens of those states. Scalia and others can only find justification for such decisions in the "penumbras" of the 11th Amendment. And we know how conservatives feel about penumbras when it comes to the 14th Amendment...

But let us not forget Bush v. Gore, the ultimate, undeniable high-point for conservative judicial activism. But don't trust me - after all, I live in the "reality based community"; here's Scalia's justification for the decision:

The classic example of conservative inconsistency remains Bush v. Gore. Not only
did the court's conservative bloc trample on the Florida state courts and stop
the vote counting - it declared its ruling would not be a precedent for future
cases. How does Justice Scalia explain that decision? In a recent New Yorker
profile, he is quoted as saying, with startling candor, that "the only
issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world." That, of course, isn't a
constitutional argument - it is an unapologetic defense of judicial activism.

And I have to wholeheartedly agree with the conclusion in the article, which is really what this whole filibuster issue comes down to, rather than some made-up garbage reason that is being thrown about by "Pander Bear" Frist, "Dead Man Walking" DeLay and "Spongebob" Dobson:

When it comes to judicial activism, conservative judges are no better than
liberal ones - and, it must be said, no worse. If conservatives are going to
continue their war on the judiciary, though, they should be honest. They do not
want to get rid of judicial activists, a standard that would bring down even
Justice Scalia. They want to rid the courts of judges who disagree with them.

- posted by Joshua @ 3:00 PM