Karl Rove at the Federalist Society
Karl Rove gave a talk tonight at the Federalist Society annual dinner. My reaction was somewhat different than this report by Reuters. The first thing that struck me was Roves claim at the beginning of his talk that the Bush administration had ended judicial activism. To say the least, I was a little surprised at this claim and thought that I had misheard it, but it was clear that this activism had already ended. Many cases immediately came to mind such as Kelo or the juvenile death penalty cases from this past year. Rove also gave a ringing defense of Harriet Miers and to my surprise also there were a number of people (though a clear minority) who stood up and applauded her.
posted by John Lott at 12:52 AM
2 Comments:
John - I am not sure that many would agree with your assessment that Kelo was a good example of an activist decision, especially given it did follow precedent set by Berman and Midkiff. Roper v. Simmons, the juvenile death penalty case, also fit quite nicely into recent SC decisions abrogating the death penalty for those 15 and under (Thompson v. Oklahoma) and the mentally retarded (Atkins v. Virginia), but the activism was extreme in the deference given to international law. As Easterbrook said in a panel discussion on Thursday at the Federalist Society convention, "judicial activism" needs to be removed from the discussion because it is never clear what someone is trying to say when they use it. What is often meant is "judges behaving badly," i.e. deference to international law without a clear departure from precedent.
I completely agree that it was a logical progression from earlier cases (I believe that I made that point to you originally regarding Kelo), but I think that all the cases that you cite go against the original intention of the takings clause. These cases are all matters of degree pushing things in an activist direction. They may frequently be just continuations of a trend, but I would also argue that Berman and Midkiff were wrongly decided. As to Frank's statement on "judicial activism" if he want to replace the term with "judges behaving badly" that is fine with me, but I am not sure what is accomplished by that change. I guess that for people who want the constitution and laws followed both statements mean pretty much the same thing. What is made clearer by this change in terminology?
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