Conservative politicians and commentators are celebrating the decision by a federal judge in Virginia striking down the recently enacted health insurance legislation. This means that in the next few days we will hear repeatedly from conservatives how a federal court has agreed with the law's critics that it constitutes an unwarranted federal takeover of health care in this country. The one thing we will not hear from the ruling's supporters is the charge of "judicial activism." This is because conservatives only complain about judges striking down laws enacted by democratically elected representatives when those rulings are inconsistent with right-wing ideology.
It is possible to take issue with a judicial opinion interpreting the Constitution in two different ways. The first is to disagree with the legal reasoning adopted by the court. The main question in the cases challenging the health legislation is whether the Constitution authorizes congressional regulation of individuals who choose not to purchase health insurance. Although I believe that the Constitution does grant Congress the power to do so, I recognize that reasonable people disagree on the correct answer to that legal question.
The second way in which it is possible to take issue with a constitutional ruling is not to question its legal reasoning, but to argue instead that courts should not be involved in deciding the issue to begin with. At the heart of this second critique is the notion that it is illegitimate for unelected judges to decide matters that are best left to democratically elected officials. It is rare these days for liberals to question the legitimacy of courts deciding constitutional questions, though they (like others) frequently take issue with the reasoning behind particular judicial decisions.
In stark contrast, conservatives for the last several decades have astutely deployed the "judicial activism" charge to great political effect as a way of undermining the legitimacy of judicial rulings with which they disagree. That they have done so is ironic because recent studies show that it is conservative members of the Supreme Court who are more likely to strike down laws enacted by Congress than liberal ones.
Indeed, there is no better example of judicial activism in recent memory than the ruling in Bush v. Gore, the decision that handed the presidency to George W. Bush. It is very difficult for a lawyer, much less for someone who is not an attorney, to articulate the constitutional grounds relied upon by the five Supreme Court justices (all appointed by Republican Presidents) who ordered that Florida stop counting votes during the contested 2000 presidential election. And yet, to my knowledge, no prominent conservative politician or commentator has ever criticized the Court for its interference with the democratic process in that case. But when it comes to an issue such as same-sex marriage, for example, it is common for right-wingers to proclaim, usually with much indignation, that courts have no business interfering with the wishes of a majority of voters or of elected representatives.
The difference between liberals and conservatives on the role of the courts, then, is not that only one side frequently seeks the help of judges in trying to render unenforceable laws approved through the democratic process. Instead, the difference is that only right-wingers criticize their political opponents for doing so.
A case such as the recent ruling by the federal court in Virginia on the health insurance legislation, whatever its constitutional merits, helps to expose right-wing hypocrisy on the issue of judicial activism. Most right-wingers are not truly troubled by "judicial activism," so long as it is an activism aimed at promoting conservative ideology.