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