Judicial Activism vs. Judicial Restraint

Remember back in the bad old days when Republicans were in power and were oh so quick to lambaste the Judicial Branch of the federal government for their  so-called “judicial activism?” Brown v. Board is an excellent example of conservative hand-wringing of the activist Warren Court. A court that saw that it was inherently unconstitutional to educate African-American children in “separate but equal” schools. Separate is inherently unequal, they wrote.

Then there is Roe v. Wade where “activist judges” ended once and for all (we hope) murder and butchery of women who were not ready to be mothers, or who couldn’t be mothers, or who were raped. Activism writ large.

Oh and there’s the activism of the Supreme Court that put a president in office, a president who did not have a majority vote, but who did subsequently ruin the economy of the country he led, and drove his country into a ditch with two undeclared and unpaid for wars.

The same court, 10 years later voted 5 to 4 that not only were corporations human beings and entitled to equal rights, but also that they were better than human beings because of the effect that hundreds of millions of dollars of super PAC funds has on elections – much to the embarrassment of the Republican Party.

So why the rant? Well right here in the South we have another activist judge on the 5^th Circuit Court of Appeals in Louisiana, someone who has continued to do harm to the poorest of us and the weakest of us. All because he is a conservative that wears his politics over top of his judge’s robe.

I speak of Appeals Court Justice Jerry Edwin Smith.

In 1991, Justice Smith wrote the majority opinion in Corrosion Proof Fittings v. EPA which found that the EPA must consider cost-benefit analysis when ruling on which poisonous/toxic substance shall or shall not be introduced to the biosphere.

In 1996 Justice Smith wrote the majority opinion in Hopwood v. Texas, a decision that ended affirmative action in admissions policies at the University of Texas. An opinion that was overturned 7 years later in the Supreme Court.

In 2007, Justice Smith wrote the majority opinion in Regents of the University of California v. Credit Suisse First Boston, which barred securities fraud claims against third parties who aided in securities fraud but did not directly mislead investors. Then we had the Great Recession, caused chiefly by securities fraud.

And just last month, Justice Smith ordered the Justice Department to submit a 3-page brief, single-spaced, mind you, explaining President Obama's views on judicial activism. Smith's order was prompted by Obama's recent press conference remarks on a case pending before the Supreme Court in which the Court was considering, among other things, whether to strike down the entire Affordable Healthcare Act as unconstitutional. Obama had said that if the Supreme Court overturned the ACA, it would be "unprecedented, extraordinary" judicial activism and that a law that was passed by Congress on an economic issue had not been overturned by the court "going back to the ’30s, pre New Deal.

In short, Justice Smith is the epitome of Judicial Activism. He is the model. The type species.

So it comes as no surprise that Justice Jerry Smith issued a stay last night that prevented Planned Parenthood from receiving funds from the state of Texas so that they could provide necessary health services to thousands of women.

Compare that to the Judicial Restraint of Federal District Judge Yeakel, a Bush-appointee. Judge Yeakel may just have the same sensibilities as Smith over the issue of abortion. But the difference between Yeakel and Smith is that Yeakel knows that sometimes the best decision is to do the right thing, not promote his own political beliefs, and his religious beliefs.

Something else that is unconstitutional.

Activist Justice. Yep, it exists. But I like my people’s activism better than theirs.