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John McCain and the Myth of the Activist Liberal Judge

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Message Dale Tavris
How many times have we heard Republicans whine about "activist liberal judges" who "legislate from the bench"? The implication is of course that liberal judges overturn laws passed by Congress in order to push their own left wing ideologies.

That is one of the many lies that Republicans endlessly blabber on about in order to lead people to believe that they respect the democratic process more than Democrats do. The truth is that Republicans have no choice but to lie about this and every other major issue of interest to the American people. How else could a Party whose every act favors wealthy corporations and individuals at the expense of the vast majority of American citizens hope to have a chance of surviving in a democracy?

John McCain does his share to push the myth of the "activist liberal judge" who "legislates from the bench", just as he pushes virtually every other Republican sponsored myth. This is what he has to say about the issue of "activist liberal judges" on his website:

John McCain believes that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, John McCain will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.... That is why he strongly supported John Roberts and Samuel Alito for the Supreme Court and that is why he would seek men and women like them as his judicial appointees.

So, let's take a look at what the evidence says about these "activist liberal judges".

An analysis of activist U.S. Supreme Court Decisions

One of the most "activist" decisions that a judge can make is to strike down a law passed by Congress. Until 1991, the U.S. Supreme Court struck down an average of one Congressional statute every two years.

From 1994 through 2005 the composition of the USSC did not change. An analysis of USSC votes by Paul Gewirtz and Chad Golder, from 1994 to 2005, a period during which the composition of the Court did not change, revealed 64 decisions involving the striking down or upholding of Congressional provisions. So what did that analysis have to say "liberal activist judges"?

Two of the USSC judges on the court during this period of time (Ginsburg and Breyer) were appointed by a Democratic president (Bill Clinton) and are considered moderately liberal. Then there are another two who were appointed by Republican presidents, but who are considered moderate (Souter and Stevens). The other five were appointed by Republican presidents and are considered conservatives (Thomas, Scalia, Rehnquist, Kennedy, and O'Connor). Here is the percent of votes in 64 USSC decisions on Congressional statutes or provisions of statutes enacted by Congress, from 1994-2005, in favor of striking down those provisions or statutes:

Thomas – 66%
Kennedy – 64%
Scalia – 56%
Rehnquist – 47%
O'Connor – 47%

Souter – 42%
Stevens – 39%

Ginsburg – 39%
Breyer – 28%

So much for "liberal activist judges". Senator Dianne Feinstein put this issue in perspective in a 2005 speech:

The Rehnquist Court has continued this restrictive, some might say "activist," position. Its decisions have wholly or partially invalidated more than three dozen federal statutes in the past decade... including: the Brady Handgun Violence Protection Act, which seeks to keep guns out of the hands of criminals; the Age Discrimination in Employment Act, and the Americans with Disabilities Act, both of which seek to protect citizens from discrimination.

Some specific ways in which conservative USSC justices legislate from the bench

Environmental protection
Environmental legislation is enacted by Congress in order to help protect our environment from irresponsible corporate actions. Many radical conservative judges don't believe that Congress has the Constitutional right to enact environmental legislation (or other legislation that establishes administrative agencies to enforce the will of Congress.) This is based on the absurd notion that, although our Constitution gives Congress the authority to enact legislation, it doesn't give them the authority to delegate that authority. People for the American Way describes the antipathy of two of our most conservative USSC justices to environmental legislation:

Justices Scalia and Thomas have already used their positions as part of narrow majorities on the Court to do very significant damage to federal, state and local efforts to protect the environment. They have also helped lead majority opinions that have undermined the ability of citizen groups to bring lawsuits in their efforts to enforce environmental protections.

Affirmative action
Congress and state legislatures enact affirmative action legislation to help equalize opportunities for minority groups who are often discriminated against. People for the American Way describes how Thomas and Scalia have reacted to these efforts:

Since his earliest days on the Supreme Court, Justice Scalia has signaled his hostility to affirmative action. In a 1987 case dealing with affirmative action for women, Justice Scalia dissented from a decision upholding the validity of affirmative action under Title VII of the Civil Rights Act of 1964...Justice Scalia stated that he would never allow affirmative action under any circumstances....

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Dale Tavris is a physician-epidemiologist who has practiced epidemiology in departments of public health and taught epidemiology, preventive medicine and public health to medical students. He has published several scientific articles in medical and (more...)
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