[Dialogue] The New Activist Judges

[Harry Wainwright]

Published on Thursday, August 24, 2006 by Truthdig <http://www.Truthdig.com>


The New Activist Judges 

by Molly Ivins 

 

AUSTIN, Texas-Another bee-you-ti-ful example of the right-wing media getting
it all wrong. Here they are having the nerve to mutter in public about
"activist judges" because Judge Anna Diggs Taylor has pointed out that
spying without a warrant is illegal in this country-so warrantless telephone
tapping is illegal in this country. 

Improbably enough, the first complaint of many of these soi-disant legal
scholars is that Taylor's decision is not well written. No judicial
masterpiece, they sneer. Nevertheless, warrantless spying is illegal. Did it
ever occur to these literary critics that Taylor has a lay-down hand? The
National Security Agency program is flat unconstitutional, and for those who
insist this means Osama bin Laden wins, it's also ridiculously easy to fix
so that it is constitutional. 

Conservatives in this country have been yipping in chorus for years about
"activist judges," and frankly, like fools, many of you bought into the
phony political rhetoric about those terrible jurists. 

Somehow, activist judges are held responsible for gay marriage, Roe v. Wade
and everything else Americans disagree about, as though Americans would
never disagree without their encouragement. Conservatives have been mad at
the Supreme Court since it decided to desegregate the schools in 1954 and
seen fit to blame the federal bench for everything that has happened since
then that they don't like. 

As any liberal could have told you, the conservatives didn't want a
right-wing shift on the nation's courts because of "social issues"-that's
just a handy political ploy. Honestly, people, haven't you figured out what
this is all about yet? Money. The conservatives are in a snit about "liberal
courts" because of money. 

Corporations being prosecuted for breaking the law! Tobacco companies forced
to pay huge fines! Oil and chemical companies made to pay for cleanup at
Superfund sites! Oh, the horror, the horror. The Wall Street Journal's
editorial page couldn't stop shivering over it for years. 

"This is the richest business term in recent memory," Mark Levy, a Supreme
Court litigator, told The Wall Street Journal, which has stopped quivering
at last. Moving right along in the long-drawn-out battle to deny ordinary
citizens access to their own courts, the justices closed down the right to
allow class-action securities cases in state courts. The court also kept out
of a lower-court decision preventing taxpayers from suing to stop tax breaks
that states and municipalities use to lure big business, a notorious example
of raging bad policy. 

Meanwhile, what a nice gift from the federal bench to the insurance
companies when a federal judge in Mississippi decided that hurricane
insurance policies excluding water damage are "valid and enforceable." As
many of our fellow citizens had an opportunity to learn during Katrina, it's
a challenge to sit around in a class IV hurricane, trying to figure out
which is wind and which is water damage. "Ooops, there goes the roof,
probably wind, followed by a huge run of waves rolling over the house, could
be water." 

Insurance company stocks went up across the board after the decision, while
the industry kindly advised its clients to "keep your eyes wide open when
buying new homeowners' insurance." 

Congratulations to the Katrina survivors who were hanging on by their
fingernails. 

Money, money, money is the motif of the "New Activist" federal judges, but
they have also been busy, busy limiting congressional authority and
individual rights. As People for the American Way notes, federal appellate
courts-effectively the court of last resort for most Americans-are working
on: questioning the constitutionality of the Endangered Species Act,
overturning the National Labor Relations Board rulings against anti-union
discrimination and other unfair labor practices by employers, allowing the
Bush administration to keep secret the records of the Cheney energy task
force, and rewriting by court order a state law on First Amendment activity.


Other Bush appellate judges have ruled to deny protection to workers who
file claims of race and disability discrimination, made it harder to protect
the environment, and issued other decisions that will affect our lives and
liberties for decades. 

Activist judges, indeed. 

C Copyright 2006 Truthdig

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