Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Thursday, December 11, 2003

RE: MY EARLIER POST ON MCCAIN-FEINGOLD John Fund says that the decision is emblematic of how Justice O'Connor has become a "judicial activist". But that's a total abuse of that expression. They upheld the law! They deferred to Congress. You can say that she's wrong, or that the ruling upholds a liberal rather than conservative policy preference, but to say that this is an example of "judicial activism" is just lunacy.

Unless, of course, "judicial activism" is just a code-word that means "judicial decisions that further liberal policy preferences."

Let's try to imagine what a politically neutral definition of "judicial activism" would be. I'll offer up this:
A court have engaged in a judicial activism when either
a) in the presence of an explicit constitutional provision that can plausibly be construed in more than one way, the court substitutes its interpretation of that constitutional provision for an equally plausible interpretation by the legislature or executive, or
b) in the absence of any explicit constitutional provision, the court substitutes its policy preferences for that of the legislature or executive.

But of course, if this is the definition, then it is the dissenters, and not the majority, that are the judicial activists in McConnell v. FEC. That is not to say that they're wrong. They may be exactly right. But they're the ones who want to substitute their reading of the First Amendment for the one that was passed by both houses of Congress and signed by the President, a reading which clearly struck the political branches as being a plausible understanding of the First Amendment and is shared by many serious legal thinkers.

As Seinfeld might say Not that there's anything wrong with that.