While liberal judicial activism and conservative judicial
activism are equally contrary to the rule of law, they have not been equally
prevalent in our times. Despite determined efforts in recent years among
liberals in the media and in academia to create such equivalence, what have
been called "conservative judges" in our times have usually been judges who
stick to the law as written. "Conservative activism" has become a clever
slogan, seldom documented with concrete examples among contemporaries.
One of the more recent attempts at portraying judicial
equivalence of the left and right, by Professor Cass Sunstein of the
University of Chicago, speaks of "the new judicial activists" who have
"struck down at least 26 acts of Congress." But this is a slippery use of
words. Judicial activism is not measured by how many laws are struck down or
upheld, but on what grounds laws have been either upheld or ruled
unconstitutional.
Liberal judicial activists of the Warren court era let stand all
sorts of liberal legislation that they agreed with, whether or not such
legislation agreed with the Constitution. Earlier liberal activists even
allowed the term "interstate commerce" to be stretched so far as to give
Congress the power to regulate a man who grew vegetables in his own garden
for his own use.
It is judges playing fast and loose with words that is judicial
activism -- and the great danger to the rule of law. Now much of the liberal
media and many liberal academics are playing fast and loose with words, in
order to create a phony equivalence -- thereby providing excuses for the
Senate to reject judges who stick to the law as "conservative activists" or
"extremists."
Much of the future of American law depends on whether the Bush
administration sticks to its guns, now that it has a majority in the Senate.
With power comes responsibility and this is one of the most important tests
of how President Bush uses that power.