Tuesday, December 7, 2010

Jeffery Toobin is Misleading Again - Those Darn Conservative Activist Judges!!

Jeffery Toobin has a article up at the New Yorker dealing with the tenth anniversary of the Bush V Gore Case.

I am not going to deal with his viewpoint of how the case was decided. I disagree with him and needless to say after his book on the subject he is vested in his outlook.

This is what got under my skin.

The echoes of Bush v. Gore are clearest when it comes to judicial activism. Judicial conservatism was once principally defined as a philosophy of deference to the democratically elected branches of government. But the signature of the Roberts Court has been its willingness, even its eagerness, to overturn the work of legislatures. Brandishing a novel interpretation of the Second Amendment, the Court has either struck down or raised questions about virtually every state and local gun-control law in the nation. In Citizens United v. Federal Election Commission, decided earlier this year, the Court gutted the McCain-Feingold campaign-finance law in service of a legal theory that contradicts about a century of law at the Court. (Citizens United removed limits on corporate expenditures in political campaigns; the decision is, at its core, a boon for Republicans, just as Bush v. Gore was a decade ago.) When the Obama health-care plan reaches the high court for review, as it surely will, one can expect a similar lack of humility from the purported conservatives.

Ok Toobin is acting as a political hack here. I really think the term judicial activism is used way too much by both the left and the right.

On the right we saw this as to when Federal Judges stayed a controversial AZ immigration law and in Oklahoma where a Federal Judge stayed the now famous no SHARIA LAW. Now of course any unbiased observer of the legal process could tell there was major Constitutional issues with both these laws that had to be looked at. That is not judicial activism that is Courts doing their job.

Now I am not saying there is not Judicial activism. It is sort of like the famous Supreme Justice quote about obscenity - YOU KNOW WHEN YOU SEE IT. For instance in the PROP 8 case a Federal Judge basically setting out a whole new definition of marriage in my eyes is judicial activism.

Now Toobin is now using this term too. I am not sure where liberal judicial reporters got into their head a Conservative Supreme Court cannot overturn a law if they think it is unconstitutional. That is they will not just take the legislative branch word that it is constitutional.

In reality the Roberts Court has continued a very deferential approach to Congressional power. In fact that approach no doubt infuriates many conservatives.

This was on display when the Justices recently had to deal with the issue if parts of the Voting Rights Act could be extended. The conservative Justices , with cause, were clearly not buying the legislative findings. However despite their obvious misgivings with the exception of Clarence Thomas they voted that such an extension was valid. This deference to the Legislative branch occurs over and over in the Robert's court but Toobin fails to mention to it.

Toobin seems to hate this new "novel" interpretation of the second amendment. First Toobin know better. There is nothing "novel" about the viewpoint that the second amendment is an individual right. In fact Toobin fails to mention the well respected liberal contribution from the academic arena that in fact endorsed that view. The Roberts Court has entertained cases regarding the second amendment a grand number of 2 times. The first case dealt with if it was an individual right. The second follow up case dealt if the second amendment applied to State and local governments.

Toobin says:
"the Court has either struck down or raised questions about virtually every state and local gun-control law in the nation"

That is false. The Court has hardly struck down any gun restrictions at all. The Court in fact said that all sort of gun restriction might be valid. What it failed to do was to give a exhaustive laundry list from a to z what gun laws were valid and which were not. That was the correct approach. They only had the particular facts about particular laws before them. In the future Legislatures and lower courts will interact on this subject and then and only then will it which the Supreme Court. Toobin make this sound bad where clearly it is not.

Toobin does not like the fact that the Citizens United Law was struck down. It was pretty clear from the time this law was passed the First amendment issues were going ot have to be dealt with. For the record recent election finance data does not show that the striking down of Citizens United was a "boon" for Republicans. In fact I believe that Democrats out raised Republicans.

What is telling here is that Toobin does not mention the cases where he perhaps agrees with the Court when they struck down a law. I am sure there has to be some. For instance in the now famou
s CRUSHING PUPPIES Heads SNUFF PORN , see a overview at United States v. Stevens . There the Court , with the exception of Alito, struck down the law on First Amendment grounds because the law was over broad. Now I am not sure if Toobin has written on this case. However I suspect he agrees with the Court in this situation. Where is anguished cries of ROBERTS COURT JUDICIAL ACTIVISM.

What is damaging about this article is it again gives a very simplistic view of the Justices and their positions on various issues.

Toobin mentions a possible health care bill case coming in front of the court. Well that is to be expected. Toobin has already telegraphed to us what he think the result should be. This sort of relates again to his earlier charge of deference. Despite the conservative leanings of the Court there has been no serious effort by the Conservative Justices to reign in the ever expanding Commerce power. Toobin of course neglect to mention this.

No doubt the commerce clause will play a role here. There has been talk that if the all parts of the Health Care Bill are upheld then there is no practical limitation on the Commerce power of Congress. We shall see what the Court decides. However I see no indication of where the Court will lean as to this issue And NEITHER DOES TOOBIN!! In fact for a Court that is suppose to be so non deferential to Congressional power there should be a whole slew of opinions that could give us indications how they would strike it down. There are none really and that is the reason why Toobin just is guessing.

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