The admin of the ADF’s blog has a post responding to this column by Edward Lazarus about judicial independence and judicial activism. Amusingly, he titles the post Why Won’t the Left Engage in Honest Debate? You’ll see why this is amusing in a moment. He claims that Lazarus “fails to acknowledge that the real issue in the debate is in fact the definition of ‘judicial activism.’” And he then refers to an earlier post by Jordan Lorence, where Lorence was replying to a post I had written accusing him of double talk on the subject of judicial activism. He cites the following from Lorence:
Jordan writes: “. . . there is such a thing as judges misusing their authority to impose their own public policy predilections on the people by court decrees that have no REASONABLE textual support in the Constitution. That is what I call, “judicial activism,” and it does exist. Here are some indicators of judicial activism . . .”
But Lorence has shown no interest at all in having an “honest debate” about judicial activism. Indeed, he refuses to even answer one simple question, which I posed to him not once but twice in two different comments on two different posts that he wrote on the subject. Here’s the question:
Simple yes or no question: was Loving v Virginia correctly decided or was it “judicial activism”? It certainly fits your criteria. There was a long tradition of miscegenation laws going not only back through American history but even back to the English common law. No court had ever struck them down before; indeed, innumerable courts throughout the country had upheld them. The equal protection clause basis for the ruling was explicitly denied by those who framed the 14th amendment, who very clearly said that the wording of the amendment was not intended to overturn anti-miscegenation laws. No court had ever recognized a right to interracial marriage before. So a clear case of judicial activism, right?
Loving perfectly fits his criteria for judicial activism, yet he refuses to answer this simple question and agree that it was a case of judicial activism. Why? Because that would be an admission that decisions he considers “activist” can, in fact, be absolutely correct. No one in their right mind today would argue, as many did 40 years ago, that Loving was wrongly decided. So he’s in a bit of a bind. He can consistently apply his criteria, which would undermine his argument against “judicial activism”, or he can apply it inconsistently and show that it’s nothing more than an empty label being applied subjectively to any decision he disagrees with. So far, he has refused to answer that question and engage in honest debate on the subject. So how about it, Jordan and the other ADF attorneys? How about a simple yes or no?