Justice Stevens and Judicial Activism

There was a lot of talk today from the Democrats accusing the conservative justices of "judicial activism." What they really mean, of course, is that the justices come up with decisions the Democrats dislike.

The Lily Ledbetter case, for example: one Senator today opined, "what should Lily Ledbetter have done?" She was implicitly arguing that the Court ignore the law and let Ledbetter sue: but the job of the court is to apply the law. To allow Ledbetter to sue would have been activist: it would have been ignoring the law and doing what you think is best instead of following the law.

Senator Franken and others attacked the "activism" of the Citizens United case, which essentially ruled only that government cannot restrict free political speech just because of who is saying it. This is "activist"? To them, yes, it is, because they believe strongly in the obligation of government to restrict speech they dislike: Franken went so far as to argue that without government censorship, we wouldn't have the Clean Air Act or seatbelt laws. Putting aside the question of whether that's accurate, it certainly doesn't make the censorship justified, not in a free country. Down that path necessarily leads to government doing literally whatever it wishes, without any restrictions whatsoever, if it believes it is doing it in the best interests of the country (including torture, warrantless wiretapping, withholding habeas corpus, and so on).

But the most remarkable thing about today, for my money, is that Justice Stevens gave us -- in one of his last opinions, the dissent on McDonald v. Chicago, the gun case -- showed us what actual judicial activism looks like.

Stevens says that the 14th Amendment protects liberty, ensuring that "a measure of dignity and self-rule will be afforded to all persons," and gives some examples: Planned Parenthood v. Casey, Griswold, and so on. He also notes that "perfect state/federal congruence" is only required on matters "at the core" of the relevant constitutional guarantee.

Whether or not our liberty to use contraception or have abortions is protected in the states by the 14th Amendment, what is critical to note is that he sees these things -- which everyone agrees are not in the Constitution -- are "at the core" of constitutional guarantees, but the Second Amendment -- which is actually in the Constitution -- is not. He says, "firearms have a fundamentally ambivalent relationship to liberty," ignoring the fact that keep and bearing them is a liberty itself, and never explaining why the fact that guns -- like speech and religion and, dare I say it?, abortion -- can cause harm has any bearing on the case before him.

Stevens notes, "Recognizing a new liberty right is a momentous step. ... Sometimes that momentous step must be taken; some fundamental aspects of personhood, dignity, and the like do not vary from State to State, and demand a baseline level of protection." But how seriously can we take him when he denies a baseline level of protection for an existing liberty right? Not at all. He adds, "... sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion."

And there you have it, folks. Ignore every other damned thing Stevens said in his dissent. He couldn't care less about any of it. All that matters to him is allowing government to ban guns, because he thinks that is a good thing. He goes into some detail about why the right to keep and bear arms is "different," but never says how they are legally or constitutionally different, although we know the answer: it's different because Stevens likes the rights to abortion and speech, but not the right to guns. He says owning a handgun is not "critical to leading a life of autonomy, dignity, or political equality." But my copy of the Constitution says it is an essential and guaranteed liberty, and damn Justice Stevens if he tries to take it away from me.

Literally, nothing else Stevens says in his dissent matters, because at the end of the day, no matter what the facts of the case, he would be "sensitive" to "political realities of contemporary society" and rule that States are allowed to ban handguns, simply because he doesn't care about protecting that particular right.

This is what true judicial activism looks like: flat-out ignoring the law, your own stated political philosophies and precedents, and common sense, and coming up with completely extra-legal ways to disallow someone from doing what the law clearly says they can do.

Judicial activism is, at essence, ignoring the law and replacing its guidance with your own opinion. Judicial activism is hatred of the rule of law, which "limits" us too much. Far better, in their opinion, to let some people in robes be "sensitive" to "reality" and determine what the law should be on the fly, instead of following the protections we've had in place (and ignored) for hundreds of years.