U.S. Supreme Court Engages in Activism: Ask Scalia

One of the phoniest, opportunistic ploys in recent years is the conservative assault on an independent judiciary calling for "judicial restraint" and attacking liberal or progressive justices as "judicial activists."

Rick Esenberg of the Federalist Society, takes this up in a paper used by Wisconsin Manufacturers and Commerce in the last judicial race, A Court Unbound? The Recent Jurisprudence of the Wisconsin Supreme Court:

Judges who seek to exercise restraint will tend to adopt techniques of construction that confine, rather than expand, their discretion...Judges practicing restraint will exhibit a sensitivity for the role of other branches of government....

Someone better get Esenberg's paper into the hands of the justices serving on the United States Supreme Court, starting with Anthony Scalia who Esenberg fondly quotes: "[a] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."

Scalia, Justice Anthony Kennedy, and Chief Justice John G. Roberts Jr. are having a difficult time following their own admonitions when it comes time to the "Millionaire's Amendment" to the McCain-Feingold campaign finance act.

The issue is simple enough. Under the law individuals can contribute a maximum of $2,300 to a campaign. The candidate can spend as much as they like. If a wealthy candidate contributes over $350,000 of her own money, then the individual contributors of the opponent can go as high as $6,900.

Simple enough.

Now enter the reactionary justices on the Supreme Court. Hearing a case challenging the act, these conservative justices are wallowing in judicial activism.

Justices Assail 'Millionaires' Amendment'

"The campaign finance regimes we've approved up to now, the significant limitations, have had an anti-corruption rationale," Scalia said. "The only purpose of this is to level the playing field. And I am deeply suspicious of allowing elections to be conducted under a regime whereby Congress levels the playing field. That seems to be very dangerous."

and

Justice Anthony M. Kennedy said he found it "a particular vice" of the amendment that it allows the opponent of a self-financing candidate to have greater ties and to receive more money from his political party. "It puts this statute in the position of preferring one kind of speech over another. And we simply do not do that," Kennedy said.

Obviously these justices are substituting their own judgment for that of the legislative body, the United States Congress.

I am waiting for the critics of Louis Butler and Shirley Abrahamson to assail Scalia and Roberts for this exercise in judicial activism.

You can hear the crickets chirping.

Comments

[lenny]

Paul. You are an idiot.

[buckyblue]

Conservatives want to believe that the only activist judges out there are the liberals. It comes from the amazing conceited viewpoint that they are some how the harbingers of the original intent of the Constitution. Any other interpretation of the Constitution must mean that a judge is putting in their interpretation, and therefore, being activist. I don't know, according to Scalia, the original rationale for agreeing with campaign finance legislation was because of the anti-corruption rationale. Where's that in the Constitution? And that makes more sense to a democratic society than the idea of leveling the playing field. Who's being activist there?
Lenny wrote: "Paul. You are an idiot"
Great come back there Lenny, simply proving again that a conservative really can't hold a logical and insightful argument against a well informed liberal.

[Ty O'Mara]

Antonin Scalia claims that there was no "conflict of interest," created by his accepting a fishing trip from(and with)Vice President Cheney. He is political. We need legislation to curb these fishing trips. Conservative Justices on the Supreme Court should be allowed to go hunting trips with the former Vice President, however.