The U.S. Supreme Court’s 5-4 decision to strike down Section 4 of the Voting Rights Act has led to cries of “judicial activism”—ironically, from liberal groups that have defended judicial activism for decades.
And the complaints also accuse conservatives, who have opposed judicial activism for just as many decades, of being hypocrites for now supporting it.
Both accusations are false.
Judicial activism is when judges decide to legislate from the bench, and when they take it upon themselves to impose remedies that Congress neither passed nor intended. The Court’s ruling did neither.
Indeed, the Court took pains not to imply that it was striking down the Voting Rights Act, and asserted that the VRA had been instrumental in addressing racial discrimination in the voting process. It simply said that Congress had not provided sufficient justification for continuing federal oversight of nine states based on a 40-year-old coverage formula that relied on obsolete statistics when it renewed the legislation.
No remedies are being imposed and no law is being made from the bench. The Court interpreted the Constitution, which is exactly what it’s supposed to do. Whether you agree or disagree with the interpretation is a different issue.
What has become something of a mantra of the left is that when the Court strikes down a law that liberals want, they call it judicial activism. Interestingly, this Friday, June 28, is the one-year anniversary of the Court’s decision to uphold President Obama’s Patient Protection and Affordable Care Act—another 5-4 decision, with Chief Justice John Roberts going out of his way to craft a creative defense of the mandate to have coverage.
Leading up to that decision, liberals were in a full-court-press to make the case that overturning the law, or at least the individual mandate to have coverage, would be judicial activism of the worst sort.
But ever since Marbury v. Madison, the Supreme Court has played the role of determining whether congressionally passed legislation passes constitutional muster. That’s what it’s supposed to do.
Of course, liberals’ complaints will eventually come back to haunt them. The day will come when Congress will pass and some president will sign legislation that liberals hate, and they will demand that the Supreme Court throw out the legislation as unconstitutional.
And then they no doubt will claim any refusal by the Court to overturn a congressionally passed law would be … judicial activism.
June 25, 2013