Gordon: Don’t believe the myth of the activist judiciary

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As a Texas court ruled the entirety of the Affordable Care Act unconstitutional last week, I was reminded of what conservative pundits constantly complain about when court rulings go against their favor — the “activist judiciary.”

From appellate court rulings against President Donald Trump’s travel ban to anti-abortion laws to SCOTUS rulings legalizing same-sex marriage, America’s right loves to blast the “activist judiciary” for placing ideological policy positions over the Constitution.

Although this has been an effective strategy for rallying the conservative political base, there is absolutely no truth to it. Activist judges do not exist in the United States. Judges hold genuine interpretative differences of opinion on questions of constitutionality on both sides of the aisle — just as it’s meant to be.

For example, take the case that legalized same-sex marriage, Obergefell v. Hodges. Conservative politicians spent months blasting the justices that declared gay marriage legal nationwide as activists who desired to push a radical social agenda on the American people.

In reality, they ruled that the 14th Amendment’s Equal Protection Clause guaranteed that the government could not make some marriages legal and other illegal. Legal scholars can and do disagree on this interpretation of the 14th Amendment, but it is absolutely idiotic to claim that those five justices were radical activists pushing unpopular social policies on the nation.

I anticipate that no conservatives will call these Texas judges that ruled against ObamaCare activists. This is simply because right-wing politicians harbor the same kind of hypocrisy as everyone else when it comes to America’s court system.

No one in politics likes it when the federal bench rules against their belief system. However, the Republican party is far more effective at mobilizing voters when it comes to the courts. When Republican voters hear the word “activist,” it conjures up images of hippies, counter-culture, and young people being “disrespectful” to America. This idea of an activist judiciary is nothing more than a political ploy to energize voters during election cycles.

When we discuss the courts and the judiciary in public discourse, we should never dismiss a judge’s legitimate constitutional opinions based on our own political ideology. Ultimately, the legal consensus of the time is the opinion that should triumph, as history shows this keeps us on a steady path forward.

The independent judiciary still reigns supreme in American governance, and don’t let anyone convince you otherwise.