Here's a differing view. The hypocrisy is undoubtedly on the left.
Court gave us justice, not activism
by Don Feder
Monday, December 18, 2000
In perhaps the supreme irony of the month-long legal Olympics to determine the outcome of the presidential election, last week liberals were lamenting judicial activism, defending states' rights and insisting, ``Just because the Supreme Court says something is unconstitutional, that doesn't make it so.''
For years, they've been telling us the opposite: That the Constitution means whatever a majority of the court says it means, even if their interpretation is contrary to the document's meaning and the Founders' intent.
States' rights? The concept is as archaic as the law of primogeniture, they insisted. ``Judicial activism'' was dismissed as right-wing fantasy meant to divert the courts from their ordained function of protecting civil liberties.
They're having second thoughts. ``Bush Prevails/By Single Vote, Justices End Recount,'' whined Wednesday's New York Times. But Stenberg vs. Carhart, which overturned the laws of 27 states banning partial-birth abortions, was also decided by a single vote. This was based on a reading of the First Amendment so creative that Justice Stephen Breyer's majority opinion deserves a Nobel Prize for literature.
Of course, liberals got it wrong again. Tuesday's Supreme Court decision was anti-judicial activism - a move to restrain a panel of black-robed pols who'd turned their courtroom into a legislative chamber.
The Constitution gives Florida's legislature - not its courts - the power to decide how electors are chosen. State law provides a deadline for certifying votes (nullified by the Florida Supreme Court in November). It allows manual recounts under specific circumstances that had not been met.
The Florida decision - overruling a state circuit court, awarding hundreds of votes to Vice President Al Gore and ordering selective hand recounts - was too much for three of the seven justices, all Democratic appointees.
In a scathing dissent, Chief Justice Charles Wells charged that the decision ``has no foundation in the law of Florida as it existed on Nov. 7, 2000, or at any time until the issuance of this opinion.''
By a bare majority, the high court prevented its Florida counterpart from making Gore president by fiat.
However, on those frequent occasions when the Supreme Court's swing votes have swung the wrong way, the court has engaged in activism every bit as outrageous.
It has barred state voters from limiting congressional terms. A voter-enacted amendment to the Colorado constitution preempting gay rights was overturned on the grounds that it was motivated by ``animus'' (in violation of the Constitution's anti-animus clause?).
A nonsectarian prayer at graduation and student-led invocations at high-school football games are tantamount to the establishment of a national church, the judicial left held.
Lower federal courts have thrown out referenda making English Arizona's official language and preventing illegal aliens from receiving tax-funded services in California.
Last week, the 6th U.S. Circuit Court of Appeals decided that Cleveland's voucher program - by which 4,000 kids are given the means to escape the wastes of public education - is unconstitutional because some funding goes to religious schools. A federal judge in Detroit determined the University of Michigan's admissions plan, which awards a 20-point bonus (on a 150-point scale) to minority applicants, is constitutional, its blatant racism notwithstanding.
Vermont's Supreme Court found a right to gay marriage in the state's 18th-century constitution, and the Supreme Court of New Hampshire overturned that state's system of funding education on equally spurious grounds.
For decades, justices and judges have been merrily usurping the authority of legislatures, overriding the will of the electorate and generally giving democracy a kick in the backside - all to liberal acclaim, because it's the only way to enact the more radical components of the left's agenda.
And now, they gripe about justices interceding in an election. Well, my friends, live by the court, die by the court.
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