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 5th 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.
