Over the last week, we have heard a chorus of voices on the left arguing that striking down the Affordable Care Act will constitute “judicial activism,” something which conservatives have railed against for years. It is increasingly frustrating to listen to commentators on the left, who disingenuously argue against judicial activism, having preached its merits for years, mis-characterize, either purposefully or from a lack of comprehension, what judicial activism is. Today, President Obama chimed in.
I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step.
This statement summarizes the canard about judicial activism that has been making the rounds. Judicial activism occurs when a court effectively acts as a legislative body, substituting its own judgment about what that law should be, rather than simply interpreting the law. Thus, if a case came before a court regarding a state law that prohibited a liquor store from selling cold soft drinks and the court, merely because the judges found the law to be idiotic, invalidated the law, the judges would be guilty of judicial activism. On the other hand, when a judge strikes down a law because it conflicts with a superior law (such as striking down a statute that forbids criticizing politicians on the basis that it violates the First Amendment) he is not substituting his judgment about what the law should be for what the law is, he is substituting the higher law for the lesser one. Not only is this not judicial activism, it is his sworn duty.