May I have your attention please?
May I have your attention please?
Will the real Slim Shady please stand up?
I repeat, will the real Slim Shady please stand up?
We're gonna have a problem here.-- Eminem
Justice Kennedy recently gave a speech, accessible at C-SPAN's website, where he said that "judicial activism" is basically a matter of not liking the results. The term can have a meaning; it just is not used consistently. Let's look at some rulings from the past week or so. Can the true judicial activist please stand up?
RENT-A-CENTER, WEST, INC. v. JACKSON is but an example of the "Citizen's United" technique of reaching out to do controersial things, pretty "activist" even if you support the ultimate reasoning:
In Rent-a-Center, in a sharply divided 5-4 ruling, the conservative majority of the Supreme Court reached out to create a new rule of pleading that makes it difficult for hard-working Americans to seek justice in the federal courts to enforce their federal rights, including the right to be free of racial discrimination in employment.
And, then there is STOP THE BEACH RENOURISHMENT, INC. v . FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION where all justices taking part held there was no taking, but four justices reached out to raise the possibility of a novel "judicial taking" which would get the federal courts involved with complicated common law state property disputes. Justice Kennedy would use the Due Process Clause to address any problems, but along with Breyer, conservatively didn't want to address the issue.
Four justices (one not taking part) warned about that and noted that the question simply didn't have to be examined at all. Justice Scalia (who, by himself, was annoyed when the Supreme Court referenced privacy concerns not immediately at stake in a text messaging case) railed against them, including accusing Kennedy of being "Orwellian." For fun, he also took a swipe at substantive due process, even though incorporation of the taking clause to the states (the very thing judicial takings in this context would involve) is itself just that!
NEW PROCESS STEEL, L. P. v . NATIONAL LABOR RELATIONS BOARD held "the Board was unauthorized to resolve the more than 500 cases" it decided, resting its ruling on a questionable reading of the text, perhaps based on dealing with practices "not ideal." A rather activist result, perhaps, one written by Stevens joined with the four more conservative members of the Court. Is it a fair reading of the statute? Such is the claim of many things called "activist" by conservatives.
Meanwhile, HOLDER, ATTORNEY GENERAL, et al. v . HUMANITARIAN LAW PROJECT isn't activist, by some definitions, since it respected congressional/executive policy. OTOH, if the dissent is correct, which it very well might be, it disrespects First Amendment freedoms. IOW, it is not "activist" enough, unless that term only means, again, "a decision you like." Or, maybe, "the right one," though that makes "activist" a pretty meaningless term, a confusing one that isn't used when the courts are acting in a pretty activist sort of way.
We're gonna have a problem here, I think.