Right-wing media demonstrate “judicial activism” by urging landmark healthcare bill be overturned by courts
Posted in Main Blog (All Posts) on March 23rd, 2010 4:48 am by HL
Despite their purported opposition to “liberal judicial activism” and supposed support for judicial restraint, right-wing media have responded to the passage of health care reform legislation by urging it be overturned by the courts. Media Matters has previously noted that despite the conservative myth that judicial activism is solely a “liberal” practice, at least two studies have found that the most “conservative” Supreme Court justices have been the biggest judicial activists.
Right wing media urge historic health care bill be overturned by judiciary
Wash. Examiner‘s Stirewalt: “Either learn to love Obamacare, or sue to stop it.” In a March 21 said of the process of replacing Supreme Court Justice David Souter, “Republicans do have a role here, and it’s to talk about judicial activism and the dangers of it”; Barnes also stated that “liberal judicial activism” is “entirely results oriented.” And radio host Laura Ingraham asserted that Judge Sonia Sotomayor, nominated by Obama to replace Souter, has “been described as judicially liberal, which means you don’t favor the principle of judicial restraint.” Ingraham later added that Sotomayor is “a traditional liberal and does not believe in, I think, a strict adherence to separation of powers.”
In fact, studies show that conservatives — not liberals — most likely engage in “judicial activism.” A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled “conservative” were among the most frequent practitioners of at least one brand of judicial activism — the tendency to strike down statutes passed by Congress. Those most frequently labeled “liberal” were the least likely to strike down statutes passed by Congress.
A 2007 study by Cass R. Sunstein (subsequently named by President Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism — the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court’s “conservative” justices were the most likely to engage in “judicial activism” while the “liberal” justices were most likely to exercise “judicial restraint.”
Numerous experts conclude that health care reform is constitutional
Legal scholars say individual mandate and other parts of bill are, in fact, constitutional. In special counsel to Sen. John Cornyn (R-TX) during Sotomayor’s confirmation proceedings — have pointed out the flaws in conservatives’ arguments, including that regulation of the health care sector falls under Congress’ broad power to regulate interstate commerce and that Congress has repeatedly passed laws regulating health care and health insurance. In a December 2009 paper for the American Constitution Society, National Senior Citizen Law Center public policy counsel Simon Lazarus added that arguments that the individual mandate is unconstitutional “have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions. Opponents’ real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in current law.”
