Thursday, December 02, 2010

Terrible Toobin

Over at The New Yorker Jeffrey Toobin couldn't let the tenth anniversary of Bush v. Gore go by without commenting:

...the Court prevented Florida from determining, as best it could, whether Gore or Bush really won. (Recounts of the ballots by media organizations produced ambiguous results; they suggest that Gore would have won a full statewide recount and Bush would have won the limited recount initially sought by the Gore forces.)

I think Toobin's first sentence is wrong for a number of reasons, but what bothers me is Toobin is stating his opinion as fact.  As for the parenthetical remark, the only recounts that Gore might have won are those that would have utilized vote-counting methods never before practiced anywhere in the country (well, perhaps in parts of Chicago).

What Toobin claims to be most bothered about is that the conservatives on the Court who helped decide the case also claim to be judicial conservatives--i.e., not judicial activists.  I think activism is often in the eye of the beholder.  Activist or not, what would you do with a law that allows Congress to ban books and videos and tell The New York Times how and when it can discuss politics?  You declare it unconstitutional and be done with it, but Toobin says:

In Citizens United v. Federal Election Commission, decided earlier this year, the Court gutted the McCain-Feingold campaign-finance law in service of a legal theory that contradicts about a century of law at the Court. (Citizens United removed limits on corporate expenditures in political campaigns; the decision is, at its core, a boon for Republicans, just as Bush v. Gore was a decade ago.) When the Obama health-care plan reaches the high court for review, as it surely will, one can expect a similar lack of humility from the purported conservatives.

From his argument I can only conclude Toobin believes one of two things.

1)  That all judges should be humble in their approach to legislation and thus numerous cases of the Warren and Burger Courts such as Brown and Roe were examples of judicial overreach.

2)  That only judges who are conservative politically should take this conservative approach, thus the left can and should use the courts for political ends but not the right.


Anonymous Denver Guy said...

I am often perplexed at the left's failure to understand what the term "judicial activism" means. It is inane to suggest that the mere act of overturning legislation is judicial activism.

Maybe the fault is in the term, which, to the lay ear, sounds like nothing more than "judges" "acting." I prefer "legislating from the bench," for that is the activity that conservatives decry.

In the case Bush v. Gore, it was the Florida S.Ct. that was trying to actively create law (a standard for recounting ballots) which the SCOTUS struck down (by a vote of 7 to 2, because the Fl. S.Ct. had "legislated" an unconstitutional standard).

The 5/4 vote simply said there wasn't enough time (under the constitution) to initiate another round of recounts. This also was not an activist decision - though it was a matter of judgment - which is the activity judges are supposed to engage in.

8:09 AM, December 02, 2010  
Anonymous Anonymous said...

It's hard to believe the left is sincere when they say this. Only if you rely on stare decisis can you even be serious about it.

7:17 AM, December 03, 2010  
Blogger QueensGuy said...

There was nothing even remotely "activist" about the Citizens United decision. "Activist", if the term means anything other than "bad", are those that create legal frameworks where none existed before. School busing cases are the classic example. To me, if it will require future monitoring by the court, it's activist. If it doesn't, it ain't. That's the only approach I know of to use it in a meaningfully descriptive way, rather than just a normative way.

DG, I'm not sure "legislating from the bench" gets you anywhere more interesting than "activist" without a better description of what constitutes legislating. And I won't take the bait yet again on Bush v. Gore.

7:34 AM, December 03, 2010  

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