"Judicial Activism" defined; an essay by Ann Coulter

Ann Coulter takes the occasion of the Kagan hearings: Kagan Hearings Surpass World Cup For Most Boring TV Event to review exactly what judicial activism is and isn't.

First, the way that Liberals view the Supremes:

But liberals see the Supreme Court as their backup legislature, giving them all the laws Democrats can't pass themselves because they'd be voted out of office if they did.

Second, the role of the Court:

As former Chief Justice William Rehnquist described the proper role of judicial review in a constitutional democracy, the courts have the last word "as to whether a law passed by the legislature conforms to the Constitution."

Third, the difference between a court that "acts" vs. one that is "activist." 

It would be every bit as "activist" for the Supreme Court to refuse to strike down a law that violated the Constitution -- e.g., Chicago's anti-gun laws or Congress' restriction of free speech via the campaign finance laws -- as it is for the court to strike down laws that do not violate the Constitution.

Examples:

If Congress passed a law banning books critical of the Supreme Court and the court refused to strike down that law, that would be "judicial activism."

Historically, judicial activists have preferred to strike down laws that are perfectly acceptable under the Constitution than to let unconstitutional laws stand. Constitutionally permissible laws include laws against abortion and laws providing for the death penalty.

We know that laws prohibiting abortion do not violate the Constitution because neither abortion, nor its synonyms, nor anything vaguely resembling abortion, is mentioned -- much less granted protected status -- by the Constitution.

And we know that laws providing for the death penalty are permitted by the Constitution because it goes on and on about capital crimes. The Fifth Amendment, for example, says:

-- "No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury";

-- "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb";

-- "nor be deprived of life, liberty, or property, without due process of law."

States are free to ban the death penalty on their own, but the Constitution requires only three things for the imposition of a death sentence: a grand jury indictment, no double jeopardy, and a hearing. The End. Love, the Founding Fathers.

And yet, the Supreme Court banned the death penalty -- even with those three safeguards -- as "unconstitutional" from 1972-1976.

Several justices -- including Kagan's mentor, Justice Thurgood Marshall -- continually voted to ban the death penalty, despite the fact that the Constitution clearly, repeatedly, unquestionably provides for capital punishment.

That's how liberals "get some things done." That's judicial activism.

Leftists and even some on the Right dismiss Coulter's intellectual acumen.  This is a perfect example of why that is a serious error.