So I’m reading the Heritage Foundation’s mostly reasonable campaign book CHANGING THE COURSE: WHAT’S AT STAKE IN 2012.
The section on JUDICIAL ACTIVISM, called “Rogue Justice,” explains that progressive judges have transformed the Court from being the least dangerous branch to a policymaker usurping the constitutional authority of the elected branches and underming our democracy.
I would only add that conservative or, better, libertarian judges have and now really want to do the same thing in some cases.
The the Heritage experts go on to give five “egregrious” examples of judicial activism over the past decade. Here are three, and three most significant, I think.
1. KELO v. CITY OF NEW LONDON
2. GRUTTER v. BOLLINGER
3. The Sixth Court of Appeals upholding the ObamaCare mandate.
Obviously, in each case the Court deferred to the decisions of democratically elected legislative bodies. The Court might have been wrong in each case. But they aren’t egregious examples of JUDICIAL ACTIVISM. They are the opposite of assertive judicial activity.
I realize this book isn’t written at a very high pay grade for good reasons. But isn’t it teaching that whenever the Court disagrees with me it’s judicial activism? Actually, the Heritage people, with good reason, are calling for more judicial activism or, maybe to be more precise, judicial assertiveness.