Some examples of conservative judicial activism:
In 1886, a conservative dominated Court decided that a corporation was the same as a person; therefore the Fourteenth Amendment protected business conglomerates from regulation by the states. The constitution made no mention of corporate personhood...the court took it upon itself to "rewrite" the constitution. Thus corporations have legal standing as "persons" thanks to conservative judicial activism.
In addition, 1920, conservative (pro-business) federal courts had struck down roughly three hundred labor laws passed by state legislatures to ease inhumane working conditions and between 1880 and 1931 those same courts issued more than 1,800 injunctions to suppress labor strikes. Where was "conservative restraint" and a respect for state's rights?
Even better, during that same period, when Congress outlawed child labor and passed other social reform legislation, conservative judges declared such laws to be violations of the Tenth Amendment: the one that states that powers not delegated to the federal government are reserved to the states or the people. YET, when states passed social-welfare legislation, the Court's right-wing judicial activists claimed such laws violated substantive due process under the Fourteenth Amendment. Leaving the state legislatures unable to act.
For more than 50 years, the courts used the Tenth Amendment to stop federal reforms initiated under the Fourteenth Amendment, and simultaneously used the Fourteenth to stymie state reforms initiated under the Tenth. Sounds activist to me.
Now we here all about liberal judicial activism in relation to integration but what about the act of conservative judicial activism that legalized segregation in the first place? A conservative Supreme Court produced
Plessy v. Ferguson (1896), yet another creative reading of the Fourteenth Amendment's equal protection clause. Plessy created the "separate but equal" doctrine, and claimed that the forced separation of races did not impute inferiority as long as facilities were equal (which, in reality, they rarely were). For some seventy years afterwards this judicial invention buttressed racial segregation.
The concept of "executive privilege". Executive privilege has been used by the White House to withhold information on undeclared wars, illegal campaign funds, Supreme Court nominations, burglaries (Watergate), insider trading (by Clinton, Bush and Cheney), and White House collusion with corporate lobbyists. But where in the Constitution is the concept of executive privilege (aka unaccountable executive secrecy)? Ans: nowhere. Yet right-wing activists on the Supreme Court declare executive privilege a "presumptive privilege" for withholding information that belongs to the president. How does this jive with strict constitutional constructionalism?
Or how about attempts at campaign finance reform? In
Buckley v. Valeo, the Court's rightwing judicial activists decided that states cannot prohibit corporations from spending unlimited amounts on public referenda or other elections because such campaign expenditures constitute a form of "speech" and the Constitution guarantees freedom of speech to such "persons" as "corporations". In a dissenting opinion, the liberal Justice Stevens noted, "Money is property; it is not speech." But his conservative colleagues chose the more creative activist interpretation. Thus poor and rich can both freely compete, one in a whisper, the other with a bullhorn and money is now "speech".
And lets not forget the most astounding example of Right-wing judicial activism:
George W. Bush v. Al Gore. In a 5-to-4 decision, the conservative justices overruled the Florida Supreme Court's order for a recount in the 2000 presidential election. The justices argued that since different Florida counties might use different modes of tabulating ballots, a hand recount would violate the equal protection clause of the Fourteenth Amendment. Talk about a creative interpretation.
A couple more...
Recently conservative justices have held that the Fourteenth Amendment's equal protection clause could not be used to stop violence against women or provide for a more equitable distribution of money between poor and rich school districts. Yet, in Bush v. Gore they ruled that that same equal protection clause could be used to stop a perfectly legal ballot recount. Then
they explicitly declared that Bush could not be considered a precedent for any other equal protection issues. In other words, the Fourteenth Amendment applied only when the conservative judicial activists wanted it to.
It is also interesting to note that the dissenting opinions were notable for their unusually harsh criticism of the majority.
Justice Stevens' dissent concluded (from Wikipedia):
What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.
I respectfully dissent.
