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Judge H. Lee Sarokin

Judge H. Lee Sarokin

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Conservatives Enraged Over Judicial Activism Displayed in Health Care Bill Ruling

Posted: 02/ 2/11 04:56 PM ET

Conservatives are outraged over decisions by two federal judges ruling against the constitutionality of the Affordable Care Act (or Obamacare as they wont to call it). They point out that the legislation was duly enacted by both the House and Senate, the elected representatives of the people and signed into law by the President of the United States, who was elected by a substantial majority of the American people. Rush Limbaugh declared it a perfect example of the men in black robes "thwarting the will of the people". Senators Hatch and Sessions issued a joint statement reminding that they had warned about judges who would "legislate from the bench and impose their own agenda" rather than upholding and enforcing the duly adopted law of the land.

Glenn Beck cried out in despair that the decisions reminded him of what had happened in Nazi Germany. He also demonstrated on his blackboard that a neighbor of one of the judges read the same newspaper that George Soros delivered as a teenager, and that this was clear evidence that George Soros had played a part in this attempt to desecrate our great Constitution and was indisputably and clearly responsible for these un-American decisions and abuse of judicial power.

Sarah Palin proclaimed that our Forefathers never intended that judges should be given the right to decide questions of constitutionality of laws made by Congress and that judicial activism arose with the launching of Sputnik and should not be allowed to exist in this great democracy of ours which used to be but isn't any more if we let judges like this make decisions that our Forefathers would never have approved of if they knew that this was going to happen to acts of Congress and other law things like that in this great land of ours being defended by our brave troops.

And then my alarm went off and I woke up. The absence of conservative criticism regarding the decisions declaring the ACA unconstitutional demonstrates that judicial activism is in the eyes of the beholder. It is not judicial activism to the right because they agree with the decision. Whether or not the statute is or is not constitutional is a profound and difficult question of law. Judges will disagree -- as they have. Neither outcome should be viewed as judicial activism. Although cries of "judicial activism" have long been the exclusive domain of the conservatives, the White House, inappropriately, to my mind, characterized one of the decisions as "a plain case of judicial overreaching", and even the New York Times jumped in with the charge that the decision was "a breathtaking example of judicial activism and overreach." Judges are charged with the duty and power of deciding whether or not a law is constitutional, but not every major decision with which one disagrees is a product of judicial activism. In order to preserve the public's respect for the judiciary, let us assume its decisions are made in good faith and spare the epithets.

Note: All of this discussion presupposes that "judicial activism" is bad, and the country has accepted it and the media has labeled it as such, but, in fact, it has produced some of the greatest decisions in this country's history.