Conservatives are always whining about "judicial activism" and "legislating from the bench." Mind you, it's not clear what precisely is meant by "judicial activism," but it apparently includes such self-evident examples as Baker v. Carr, Brown v. Board of Ed., Miranda v. Arizona, Griswold v. Connecticut, and Roe v. Wade.
Fair enough. If that's what judicial activism is, then as proud progressives we should embrace the label.
But, the right's posturing on this is both disingenuous and hypocritical, for an honest conservative (if you can find one) would admit that conservatives have long been engaged in a project of judicial activism, and have been making steady progress.
Follow me below the fold for my top five all-time most egregious examples of conservative judicial activism.
Note: Despite the infamy of some of the cases on this list, it is not necessarily intended to be a list of the worst cases of all time. Any resemblance to such a list is surely just a coincidence.
So, without further ado and in chronological order:
Dred Scott v. Sandford
To many, this is the worst case ever decided by SCOTUS. It makes my list because not only did the court attempt to strike down Congressional legislation restricting slavery in federal territories (the Missouri Compromise) and forever insulate slavery from Congressional regulation of any kind, its attempt to do so was dicta.
The Civil Rights Cases
In this consolidated batch of cases, the court held that the 14th amendment didn't protect individuals from any nongovernmental discrimination and proceeded to strike down most of the Civil Rights Act of 1875 which had provided for nondiscrimination in public accommodations. Congress never does read the Constitution right, does it?
Lochner v. New York
Despite holding in the Civil Rights Cases that the 14th amendment, which had clearly been passed to ensure equality for former slaves, didn't protect individuals from private discrimination, the court had no hesitation in holding in Lochner that a fundamental right to "liberty of contract" was inherent in the amendment as a substantive aspect of the due process clause. Lochner was the legal apotheosis for disciples of laissez faire economic philosophy.
United States v. Lopez
The Lochner era ended during the New Deal, just in time to deflate Roosevelt's court packing scheme. With Lochner out of the way, progressives were free to begin building a more modern, social democratic state. However, much of the law that undergirds that state is based on Congress's commerce clause power. If you want roll back the New Deal, you need to weaken the commerce clause, and that's precisely what Rhenquist set out to do in Lopez by striking down commerce clause based legislation for the first time since the Lochner era. For that reason, this case is seen by many as a first step toward a return to the good ole days of Lochner.
Oh, and let us not forget that much of the civil rights legislation is likewise based on the commerce clause. But surely, considering the court's exemplary record on race relations in Dred Scott, Plessy, and the Civil Rights cases, this is just a coincidence?
Bush v. Gore
We all know why this case is activist: it's a nakedly partisan decision. Enough said about this one.
NAMUDNO?
But the court, packed with doctrinaire Federalist originalists, is far from done issuing activist decisions. It looks like SCOTUS is poised to invalidate portions of the voting rights act next. When that happens, I'm sure that the always intellectually honest GOP will rise up in anger about the "judicial activists" who are "legislating from the bench". But I won't be holding my breath.