Friday, June 29, 2012

Passive Aggressive Activism

I may write more when I have more time, but this Slate-pitch worthy piece by Damon Root on yesterday's ACA outcome warrants a response:
Many of Roberts’ critics will no doubt be tempted to denounce this ruling as an example of judicial activism. But in fact the opposite is true. By employing a method of statutory interpretation designed to give Congress and the White House the benefit of the doubt, Roberts exhibited the hallmarks of judicial restraint. “It is not our job,” he declared, taking yet another page from Holmes’ playbook, “to protect the people from the consequences of their political choices.”
The decision is being hailed by absolutely no one, including ACA's supporters, for its jurisprudential acuity. The Chief Justice, while deferring to the legislature's policy on the whole, effectively rewrites the statute, using arguments rejected in all but one federal court on way to certiorari. Usurping legislative prerogative is definitionally activist as it is beyond the scope and function of the judiciary. This isn't "calling balls and strikes," this is calling a change-up a fastball.

With all due respect to Damon, he completely missed this activity/inactivity distinction.

bellum medicamenti delenda est


Unknown said...

Citizen United clear example of judicial legislation..per Roberts..allowing unlimited cash to flow into Kochbros programs is an absolute travesty of justice..he sided with the progrssives to save face..his opinion is shifting the legal system to states..he has sided on every decision on the wrong side of history..his legacy was at stake..and he knew going into this monumental decision will at least give him credit for something decent and fair.but he did open the door for challenges...unlike unctom..scalia..kennedy altho he does have some backbone at times..and the goof who shook his head no during the Presidents SOTUnion..

JPB said...

Did you read the Citizen's United decision or are you just parroting talking points?

Unknown said...

are you being condesceding or just an out of touch writer without as much insight as you purported to have..just ake a position valid..with substance and proceed we can..but parrating..seems you do that best in most of the dribble coming from this

JPB said...

When you start writing in complete sentences and without misspelling basic words like 'parroting'and 'drivel', I might take your critique of my writing seriously.