Engaged Activism or Active Engagement?

After the watered down version of health care reform was signed into law, the right blathered on about the act's unconstitutionality, and several Republican Attorneys General filed lawsuits.  After fourteen of these cases were dismissed, including two which rejected on the merits (as opposed to procedural grounds) that the law was unconstitutional, Judge Henry E. Hudson, a federal district judge in Virginia, held that the individual mandate requirement of the act is unconstitutional.  Putting aside the fact that the issue could have been avoided had health care reform included a public option (and that the individual mandate was originally a Republican idea), Judge Hudson's decision offers a prime example of the new judicial activism.

According to Judge Hudson, who was appointed by George W. Bush, requiring Americans to obtain health insurance exceeded the regulatory authority granted to Congress under the Constitution's Commerce Clause.  Judge Hudson's ruling appears to be deeply flawed (Yale law professor Jack Balkin describes the opinion as "pure sophistry"), but that may not matter given that the case will move to the ideologically conservative Fourth Circuit Court of Appeals and then, most likely, to the Supreme Court.

As I have previously written, Republican administrations since Ronald Reagan have aggressively pushed for the appointment of extremely conservative judges – i.e., politically conservative, not conservative by judicial temperament -- while Democrats have been less focused on ensuring the appointment of liberal nominees or blocking extreme right wing Republican nominees.  This has resulted in a sea change in the federal courts, which now boast a strong majority of Republicans.  As we have seen with Judge Hudson's health care ruling, the implications for public policy are dire.

Emblematic of conservative Republican judges, Judge Hudson, as the Washington Post previously reported, has long been active in Republican politics.  He even owns a large share of a Republican consulting firm.  But despite Hudson's conservatism and political activism, his nomination sailed through the Senate where he was approved by voice vote in August 2002.  (In a stark contrast, there are currently 34 pending judicial nominees who have already been approved by the Judiciary Committee but have been stalled by Senate Republicans).

Which brings us to the meaning of judicial activism.  Judicial activism has been described as "legislating from the bench," and reaching rulings that substitute a judge's personal views for those of the democratically elected branches of government.  Republicans have long condemned as judicial activist rulings they did not like, particularly those that have upheld rights of criminal defendants and civil plaintiffs, and protected privacy and individual liberty.  But now that they can claim a large majority of the judiciary, they have embraced judicial activism, although they won't call it that.  Thus, as E.J. Dionne has written, conservative judges are overturning "decisions made by democratically elected bodies in areas such as pay discrimination, school integration, antitrust laws and worker safety regulation."  The current Supreme Court, as the Times wrote back in 2007 uses judicial activism in service of conservative ideology.  And, as Dionne put it,"[i]f anyone doubted that the Supreme Court's current conservative majority wants to impose its view no matter what Congress or state legislatures decide -- or what earlier precedents held -- its decision in the Citizens United case should end all qualms."

A couple of weeks ago, conservative columnist George Will, anticipating Judge Hudson's decision, argued that holding the health care reform's individual mandate requirement unconstitutional should not be considered judicial activism.  Will attempted to distinguish the judicial activist, who he claims "creates rights not specified or implied by the Constitution" and what he calls the "engaged judge," who "defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary's duty to declare what the Constitution means."  What a relief.  I was worried that Judge Hudson's unprincipled and result-oriented ruling was a product of judicial activism.  It turns out that unlike the 14 other federal judges that rejected similar challenges to the health care law, Judge Hudson was merely acting engaged.

[Related posts:  Vacant and Lame, Corporate Takeover, Activist Judges,