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June 10, 2010

An (amusing and telling) attack on Elena Kagan's potential to be "activist judge" who "will undermine Americans' gun rights"

One reason I have been a fan of the Supreme Court's Second Amendment work in Heller is because the ruling should help bring an end to simplistic (and, in my view, misguided) attacks on "activist judges" from the right.  Because it was the so-called conservative wing of the Supreme Court that cast all the votes to strike down DC's handgun ban as unconstitutional, Heller seemed to make it impossible for those on the right to hurl the "activist" invective against any and every jurist who ever declared unconstitutional a duly-enacted piece of legislation.

Of course, I was wrong to assume that Heller itself would serve as an epitaph for the use of "judicial activist" as a vituperative accusation.  And, as evidenced by these sections of this amusing Washington Times editorial attacking Elena Kagan's approach to the Second Amendment, it seems that the activist label can still be hurled at someone inclined to uphold gun regulations:

[Ms. Kagan's] memos to Justice Marshall foreshadow an activist judge who wouldn't hesitate to fall back on her own personal views to override policy decisions made by elected officials. She clearly counseled Justice Marshall on how he should rule based upon whether she thought policies made "sense."...

Ms. Kagan is Justice Sonia Sotomayor's soul sister when it comes to gun control.  Last year, during her confirmation hearings, Ms. Sotomayor insisted the Supreme Court had never found that an individual right to self-defense exists.  Two of Justice Sotomayor's own appeals court decisions came to the same conclusion.  One ruling denied there is an individual right to self-defense.  In another case, even after the Supreme Court struck down the District's gun ban, Judge Sotomayor opined that any restrictions on self-defense would pass constitutional muster so long as politicians who passed it said they had a good reason.

According to the Washington Times, Kagan is to be faulted as a potential "activist" judge because she apparently would "fall back on her own personal views to override policy decisions made by elected officials."  And yet Justice Sonia Sotomayor, Kagan's "soul sister" is to be faulted for not being willing to override duly enacted laws just because "politicians who passed it said they had a good reason."  Huh?

June 10, 2010 at 02:16 PM | Permalink


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Doug, this right wing stuff is a religion. It has nothing to do with law, much less with logic. "Liberals" are by definition the spawn of the devil, and vituperation directed at them need not comply with the normal rules of logic or common sense (i.e., liberal judges are by definition activists; conservative judges, on the contrary cannot be, no matter what they do). It's time everyone realized the total irrationality of current right wing thinking, and how scary that really is, since that irrationality now controls one of our two major parties.

Posted by: David in NY | Jun 10, 2010 2:46:18 PM

Activist judge really means: a judge who makes a ruling I disagree with if it involves overturning law or precedent.

Meanwhile liberal means supporting expansive rights, except those found in the 2nd, 9th and 10th amendments.

Posted by: monty | Jun 10, 2010 4:41:22 PM

Whether a person is an "activist" judge does not depend exclusively on whether he or she is willing to overturn legislation. It turns on whether the overturning is correct. If it is, as it was in Heller, then the charge of "activist" is without merit.

Posted by: Bill Otis | Jun 10, 2010 5:51:16 PM

David should reveal how much of his income depends on tax revenues. If a substantial fraction does, his conflict of interest makes his personal attack on the moderate mainstream have no credibility, being just irresponsible ad hominems. These show frustration in the traverse. The frustration is understandable. The facts abandoned the left 100 years ago.

Posted by: Supremacy Claus | Jun 10, 2010 9:07:33 PM

There is no constitutional basis for judicial review. All judicial review is insurrection against the constitution, Article I Section 1. It should be punishable by death after a brief trial consisting of the reading of the appellate decision.

As a matter of historical policy setting, judicial review has also been an unmitigated disaster for the nation. The first decision, Marbury, was corrupt, and contained a lot of illegality. The second, Dred Scott, set off a Civil War. Roe v Wade involved the signing of the death warrants of millions of viable babies. Forced busing destroyed viable, prosperous black neighborhoods. Why are all these decisions so damaging? The members of appellate courts appear to all be cult indoctrinated dumbasses, once intelligent, but mentally crippled by their law school educations.

Posted by: Supremacy Claus | Jun 10, 2010 10:31:24 PM

"Heller seemed to make it impossible for those on the right to hurl the "activist" invective against any and every jurist who ever declared unconstitutional a duly-enacted piece of legislation."

Amusing naivete if you actually believe this. Conservatives overturned legislation before that. The people as a whole if anything are more supportive of gun rights than some of the other laws they struck down.

But, and I hope you realize this, the whole point is that certain things are not deemed to be "duly enacted." When the SC -- to take a simplistic view that at times dominates -- overturns such legislation, they are not being "activist," but just following the law. If "activist" just means "overturning legislation wrongly," it is pablum, but such is the nature of much political rhetoric.

Posted by: Joe | Jun 11, 2010 12:35:40 PM

Irony point #1: Justice Thomas has voted to overturn more laws than any other Justice on the bench. Guess he's one of those activist judges as well?

Irony point #2: The Civil Rights movement advanced most significantly after the passage of the Civil Rights Act of 1964, which the Warren Court upheld notwithstanding commerce clause challenges. Does this mean that the Warren Court's judicial restraint was actually secret judicial activism?

Posted by: Res ipsa | Jun 11, 2010 2:53:59 PM

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