The Sotomayor Hearings Expose the Judicial Activism Myth

By Bonnie Erbe, Thomas Jefferson Street blog.

U.S. senators frequently spend way too much time belaboring the obvious or posturing during opening statements before they start questioning Supreme Court nominees. But today's statement by Democratic Sen. Sheldon Whitehouse of Rhode Island is a surprising exception. In his statement, he laid bare the fallacy of judicial restraint, used by conservatives to pretend that conservative-leaning judges don't make new law, whereas "activist" liberals do:

For all the talk of "modesty" and "restraint," the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases, for example; the first limitation on Roe v. Wade that outright disregards the woman's health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Over and over, news reporting discusses "fundamental changes in the law" wrought by the Roberts Court's right wing flank. The Roberts Court has not lived up to the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.

I have railed about the fallacy of judicial restraint in this space before. After covering the Supreme Court and Justice Department for a radio network in the 1990s, I became convinced that all judges, whether liberal, conservative, or moderate, bring their chosen reasoning into arriving at judicial decisions. Neither side is immune from blurring personal political proclivities with their rulings as judges. It's just that conservatives try to pretend they are. The pretense is passé and needs to go.

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