Antonin Scalia, Judicial Activist? Nice try.

Posted by: Bill of Right
on April 19, 2005 @ 09:48 AM EST

Adam Cohen says that Justice Scalia is an “activist” judge. Among other things, he says, “The Supreme Court's conservative majority regularly overturns laws passed by Congress, like the Violence Against Women Act and the Gun-Free School Zones Act.” Cohen tirades on a number of points (each is screaming for a rejoinder) but the very fact that he points to these two laws exposes an appalling bias. MORE

VAWA created a federal cause of action against anyone "who commits a crime of violence motivated by gender." (Congress scored points with women: “We’re looking out for women!”) To pass VAWA, Congress had to claim violence against women affected “interstate commerce.” It didn’t, and these two words don’t appear in Adam Cohen’s editorial—probably because he knows how absurd Congress’ claim was. Cohen also omits that Congress’ New Deal free ride ended in 1995 (US v Lopez – the case invalidating the Gun-Free School Zones Act), when the Supreme Court reeled in Congress’ authority to regulate “interstate commerce”: it isn’t the power to regulate everything. For decades before Lopez the Interstate Commerce Clause had been rendered all but meaningless, because a politically-motivated Supreme Court had said Congress had authority to regulate anything that affects interstate commerce. That, together with things like the “cumulative effect doctrine” meant, essentially, that Congress’ power was regulated only by the political benefit of passing a law. (What doesn’t “affect” interstate commerce? Midget tossing? Llama racing? Is anything left to the states?)

The Gun-Free School Zones Act followed the same pattern. It made a federal crime out of the possession of a firearm in a “school zone.” This sounds very nice (yay! we're looking out for children!). But “interstate commerce”? Hardly.

“Judicial activism” has defied definition precisely because shills llike Adam Cohen are willing to equate it with any court decision that annoys them. And Washington liberals are annoyed when they cannot pass laws that score with their constituents. (There's no political benefit to deferring to state law, is there?) In these instances, the constituents were women and gun control fanatics. But Cohen is appallingly dishonest in his reference to "conservative" judges as the activists. The “activist” judges were those in the minority who would render the Interstate Commerce Clause -- a clause included to ensure unimpeded economic activity between the states -- virtually meaningless, again.

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