On judicial activism

Having seen this headline on Alito, I felt the need to comment. And by felt the need to comment, I mean that I don't want to work and this seems a reasonable way to procrastinate.

Complaints about judicial activism are stupid, plain and simple. "Judicial activism" is merely Republican code for "not agreeing with us." Moreover, it's a dangerous fallacy to profess a belief in a single, totally objective interpretation of law. It just doesn't exist, and to convince people that it does is to convince them that one particular viewpoint is an indisputable truth, which, much as the conservative Congressional majority would like us to believe, it isn't.

Judges are not administrators, and they were never meant to be. That is, it is not the case that the law is entirely prescriptive, and judges are there merely to unquestioningly administer those prescriptions. Reality, and consequently law, are simply too complex for that to be the case. It is unavoidable that a judge must attempt to discern intent behind a set of laws and rule accordingly. The difference between rule of law and prejudicial magistrates is that a judge is supposed to base his or her judgments on an academic interpretation of law and precedent rather than his or her own personal opinions about either the specific case or the issue at hand. It is unavoidable, however, that a judge's opinions about particular judicial principles shape his or her judgments, and that is has it should be. Though Scalia is generally a sleaze, and he should never be forgiven for his prejudice in the Bush v. Gore case, it is to his credit that he dissented to the majority opinion that upheld the federal government's priority in regulation of marijuana use in California. I'm sure, being the conservative douchebag he is, he hates the idea of legalized marijuana, but he felt compelled to rule in favor of it based on his belief in limited government and states' rights. That's how judges are supposed to operate.

It is frustrating, then, to see all this rhetoric about "judicial activism" surrounding Alito. It's quite simply the wrong fucking debate. The issue is not whether Alito will dispassionately administer the law "as it is written." The Supreme Court by its very nature addresses issues where the law is murky, and decisions will necessarily be based upon larger issues and concerns. Therefore, what people _should_ be looking at is what Alito's views on the Constitution are, and what larger principles he adheres to when making decisions. And the evidence is compelling that he believes in an extremely limited governmental power to regulate, well, anything, as well as an interpretation of fundamental Constitutional principles that is so narrow as not to be applicable to modern issues (a la abortion) the way Scalia and Thomas do. And it is on that fact, not his supposed "activism," that he should be filibustered as an extremist.

(As an aside, this op-ed by George Will, who is often a right-wing douchebag, was surprisingly cogent. Probably that's because the one area I tend to agree with Conservatives [that is, true, academically honest Conservatives] is on the value of meritocracy over democracy...people are basically dumb and quite often leaving decision-making up to them is a terrible idea)