Are Conservative Judges Activists?

One more legal themed post (for now). I could not let this pass. Oneof the best Catholic blogs out there is Mirror of Justice-A blog dedicated to the development of Catholic legal theory.

It has many viewpoints and is a good read.

I enjoy their posts very much but I could not let this one pass.Father Joe and activism

I think, however, that the term "activist" has been used in a one-sided way and is not very helpful in any event. I would hope that the Sotomayor confirmation process would frontally attack the conservative claim that their justices interpret the Constitution and that liberals are “activists.”

When the conservatives disable Congressional power (contrary to many decades of judicial precedent - even conceding that commerce clause interpretations had gone quite far) and in some cases obviously mangling the Constitution, e.g., the eleventh amendment cases) and when they overthrow affirmative action (despite the original meaning of the 14th amendment all the while claiming that they adhere to original meaning), it is hard to understand why their decisions are not activist. Staring at the word activist does not help in the process of constitutional interpretation. It is just an ideological term employed by conservatives, and it should be understood as such.

I might just be an idiot with some State Law School education but I am not sure how the clear and original meaning of the 14 Amendment justifies modern day affirmative action cases. Perhaps it could be pointed out to me in the text.

But my main problem here is whole Conservative Jurists are just as activist. Please note that concession on "Commerce Clause interpretation"_ have gone quite far is quite a big concession. And lets be honest. Since the huge Commerce case of Lopez in the 90's has the power of Congress been really that curtailed? Even by these supposed activist Conservative judges. In fact despite having a a weapon at their hand (and many of wish they used it more) they have been - well pretty conservative in going in that direction

Now what gets me in this post is something I see far far too much. There is a theme that conservatives are activists on the bench if they have the audacity to say to Congress - Sorry you can't do that!!

That is do the unheard act of overturning a law!!! Who heard of such a thing!!! This is a common theme of a certain legal talking head at Slate that sings this tune when ever the "Conservative faction" on the Supreme Court declares a Law unconstitutional she likes. Well it has been going on since the start of the Republic. Contrary to what some might think Conservative legal thought has not been "Yes Sir Master Congress yall pass anything you want and we shall rubberstamp it Just keep sending the money up here for our paychecks and to pay the light bill in the Court room".

For instance in a recent case where the Conservatives are asking the sensible question why a supposed temporary measure of the voting rights acts is still just be applied to the old South(and ilooks very much like a Protect the Incumbents Act with Const protection) they are not being activist. They are asking why Louisiana is treated different than California. They are asking why my tax dollars as a U.S. Citzens is having to still go to comply with this act why another taxpayers in lets say Illinois does not. That is not being activist.

So no conservatives are not "activists" when they tell Congress their power is not limitless. I really wish people would stop making such absurd claims.