Judicial Activism

The term "judicial activism" has been thrown around for the past 20 years or so. I'm not a lawyer, and I'm certainly not a constitutional scholar nor a former teacher of constitutional law like our President is. Never set foot in a law school in fact. But I do understand plain English, and I thought I knew what the Supreme Court's job is.

So during the current debate about how the SC is going to vote on Obamacare, we've heard all sorts of reasons why they shouldn't strike this law down:

1.) This is a major piece of legislation and it would be wrong to strike down such a significant law by a thin 5-4 decision.

2.) Ruling this law unconstitutional would be "unprecedented" since it was enacted by a "democratically elected" congress.

3.) Overturning laws, is itself, judicial activism.

4.) Overturning this law will create chaos and deny health care coverage to millions.

Liberal pundits and Presidents have all used one of these or some similar argument.

Excuse me, but ruling on the constitutionality of a law IS WHAT THEY DO! A friend of Cheif Justice Oliver Wendal Holmes once told him as they were parting and Holmes was headed back to work, that he needed to "Do justice!" Holmes replied, "That's not my job. My job is to apply the law."

The Supreme Court does not pick winners and losers. They are not supposed to assess the desirability of any law, just the constitutionality. Overturning laws is what they do. Was it judicial activism when they struck down separate but equal?

No, judicial activism is when a justice stands logic on it's head in order to arrive at the "right" conclusion. Here is a perfect example, and one that we've lived with for some 70 years now. In the 1930's when FDR was pushing the New Deal, he had some rather strange ideas about what was ailing the economy. One of those bizarre theories was that prices were too low. So he instituted minimum prices for everything. A farmer in a particular state was raising wheat (I think) and using it strictly for his own and his farm's use. He was not selling it across state lines. And that was significant because without interstate commerce being involved, the Supreme Court had no standing to even weigh in on the case. But they really, really wanted to support FDR, so they came up with the following logic: Even though the farmer was not engaging in interstate commerce, his mere production of the wheat would have an effect on the prices that were being charged in interstate commerce, so they let themselves in that side door and ruled on the case. THAT is judicial activism.