VAN SUSTEREN: It doesn’t sort of escape me that the people who have filed are all Republicans, with the sole exception of the attorney general in Louisiana is a Democrat. I think he’s probably the only — is he the only Democrat who has joined this?
PAWLENTY: As far as I know. You know, of course, there’s probably some political overtones to it, but I think it’s also, frankly, Greta, philosophical. We have a group of people like me who view the federal government should have a limited role. There’s a bunch of people who have a different view. And that’s what the courts are for, to hash out these differences. So let’s get it on.
Wait: back that thing up. Courts are there "to hash out differences" regarding philosophical conceptions of the role of government? That's funny, because I could have sworn that's what legislatures were for. Apparently, the "it" Pawlenty wants to get on is some good ol' fashioned judicial activism.
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He phrased it incredibly poorly, but I think a charitable interpretation of his words is that he meant a group of people like him believe the Constitution says the federal government should have a limited role, and there’s a bunch of people who have a different view of the Constitution. And that’s what the courts are for, to hash out these differences.
Though does anyone believe that when the federal courts deny these lawsuits based on the states' lack of standing to challenge the individual mandate (which falls upon individuals, not the states, and the penalty of which goes through the IRS and does not require the state to act), we won't hear Pawlenty et al. declaring this to be a technicality used by activist courts to deny constitutional rights?
I think that's a very uncharitable interpretation of his words, and I don't like the guy.
As far as I understand it, most criticism of judicial activism is 1) that it's results-oriented, not process-oriented, so you don't get a very consistent set of rules, and 2) that it's the court ignoring what the constitution actually says in favor of wishful thinking loosely based on the words. Note that this second one is itself a (politically) philosophical position in conflict with the so-called "activists." So no inconsistency there.
And I'm sure Pawlenty would also say that the passage of the bill was results oriented as well. Now in terms of the parliamentary tactics used, this is empty red meat FOX bluster because under the constitution the House and Senate decide on their own rules and everything goes as long as you get a majority for a bill in both houses (or a supermajority in cases of veto)-- the filibuster ain't in Article I or anywhere else. But as to whether Congress has the constitutional authority to do this in the first place, that again goes to the interpretive philosophy used in the courts... if the Congress doesn't have that power, then it follows it was more concerned with the results of the bill than in observing the legal limits of its power. None of this is to say Pawlenty or most people of any political persuasion don't favor activism when it benefits their agenda; I absolutely think they do. I just think that you didn't catch him admitting it this time.
(To me, the fact that a hundred years ago and before this kind of bill would be considered unconstitutional by the Supreme Court really speaks for itself when I'm arguing how worthless originalism is to we the living.)
(To clarify, the above comment was directed at David's post. I agree with PG now that I read her comment, and see that she was able to say much the same thing with more brevity.)
I think one of the hallmarks of conservative rhetoric regarding "judicial activism" is that it substitutes judicial determinations for democratic preferences ("these decisions shouldn't be made by unelected judges"). This has at least some advantages over the "politics over law" formulation because the latter is almost impossible to distinguish from "decision I don't like". Scholars who try to measure "judicial activism" tend to use this measurement precisely because it's something that can be measured (SCOTUS striking down legislation).
But T-Paw wasn't talking about an objective study, just his opinion.
Now, I'd certainly agree that the "unelected judges overriding the people" complaint is common rhetoric. And it's largely a bunch of crocodile tears because virtually everyone agrees that some laws are/were unconstitutional, and of those people everyone who agrees with the idea of judicial review agrees the courts can strike those laws down. If Pawlenty ever gave a speech using this rhetoric I'd agree you definitely nailed him on that. (Along with every politician who would ever make that criticism about any decision -- as I assume many Democrats would if the Court did do away with Health Care -- and still agree with Marbury... so maybe there's a militia member state legislator in Idaho who's sticking with his convictions?)
But I don't know that Pawlenty has made such a statement, and if he did it would be fish in a barrel, so I assumed you were confining the discussion to the complaints about "judicial activism" that resemble serious claims. The kinds serious judges would actually make and believe.
Of course, it's more legitimate to say "you're making the law up to suit your tastes, and you're setting aside the democratically adopted law to do it." But overriding the "will of the people" only becomes bad here once you reach the decision by misconstruing the Constitution, until then it's just rhetoric.
George Will gets it.
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