Ricci and “Activism”

This is hardly an original-to-me point, but you don’t need to look any further than conservatives’ fury at Sonia Sotomayor’s participation in the Ricci appellate decision to see how hollow their complaints about “judicial activism” are. Conservatives just really don’t like Title VII of the Civil Rights Act and they think the situation in New Haven illustrates the injustice of the law as written. So they want the judiciary to reverse its earlier precedents and change things around.

Maybe they’re right or maybe they’re wrong. But this is what judicial activism just is. They could be mounting a campaign in congress to change the law. But instead they’re trying to get the courts to do it for them. You saw the same thing in the other big conservative judicial outrage of recent years, the Supreme Court’s ruling in the Kelo eminent domain case. Here, again, what happened was that some lawyers had dreamed up a fairly clever and somewhat plausible argument as to why the court ought to step in and overrule the policy decisions of some elected officials. And what the court did was decline to step in and do that. In response, many jurisdictions passed some different laws putting more restrictions on the use of eminent domain.

In both Ricci and Kelo, in other words, you have courts acting how conservatives say they want courts to act—applying the law-as-written and not inventing new constitutional doctrines to justify wading into political controversies.