Wednesday, April 25, 2007

In the eyes of the law

Hold your index finger in front of your face and look it. Now close your left eye. Then open it back up and close the right one.

Your finger never actually moved, but it appeared differently depending on the vantage point from which you saw it. The phenomenon is known as parallax, and it's worth remembering whenever you hear the term "judicial activism" bandied about in discussions of U.S. Supreme Court rulings.

Some Republicans believe the justices are on a mission to legislate from the bench and remake the nation in their own liberal image. For support, they point to a number of recent cases, including a ruling that a ban on only homosexual sodomy is unconstitutional, a decision that courts can't impose the death penalty on people who were under 18 at the time of their crime, and a declaration that state legislatures can define what constitutes a "public use" to justify the exercise of eminent domain.

Viewed in a vacuum, it might be impressive evidence. But also consider these rulings: It took seven years for five conservative-
leaning justices effectively to overrule the U.S. Supreme Court's prior jurisprudence on sovereign immunity and late-term abortions. And if today's oral arguments were any indication, it may take only four years for Chief Justice John Roberts' bench to strip precedent on the McCain-Feingold Act of any real meaning.

Whether you agree or disagree with any of these outcomes, remember them the next time you hear complaints from either side of the aisle that judges are engaging in judicial activism by ignoring precedent and the will of the people. The difference between an outrageous example of judges running wild and an admirable defense of constitutional principles often comes down to nothing more than which eye you have open.

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