Recent statements by Republican presidential candidate and former House Speaker Newt Gingrich regarding the powers of the Supreme Court have opened up a conversation that is crucial to every American, especially now that the court has agreed to consider the case of the constitutionality of the Affordable Health Care for America Act (Obamacare) and the individual mandate.

The argument that the Supreme Court has been entrusted with the power of judicial review dates back to the case of Marbury v. Madison in 1803, which established the Supreme Court’s power to strike down an act of Congress. Chief Justice John Marshall asserted that it is “emphatically the province and duty of the judicial department, to say what the law is.” The Supreme Court is the arbiter between the people and the legislature and protects the people from unlawful actions by Congress. The dilemma is, and has always been, that the Constitution does not provide a remedy for an overreaching Supreme Court.

While many believe that a Supreme Court justice, with a lifelong appointment, will rule on legislation based on its constitutionality, an unchecked Supreme Court could impose its will on the country against the will of the people.

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What is the most important part of the 11th Circuit’s recent ruling on The Affordable Care Act?  You might think it was the individual mandate being struck down.  But it was actually this:  Judicial engagement.

For the first time in our nation’s history, a federal court used the term “judicial engagement” in a ruling striking down federal legislation.   This is a cause for celebration because—regardless of one’s political leanings—we should all agree on the need for engaged judges.  (And regarding the individual mandate, we all know that it will ultimately reach the Supreme Court.)

As the nation’s leading legal advocate for liberty, the Institute for Justice enters courtrooms across America determined to vindicate our most precious rights.  And all too often, our opponents argue that judges should ignore facts or even make them up to justify what the government is doing.

Conservatives, liberals and libertarians should all be able to agree that we need judges that are serious about judging and examining the real facts about what our government is doing.

Today it is fashionable to laud judicial decisions that line up with one’s worldview—and condemn those that do not as “judicial activism.”  So it comes as no surprise that E.J. Dionne referred to the 11^th Circuit ruling on the individual mandate in the Washington Post as “the latest episode of rampant conservative judicial activism.”

But as constitutional expert Robert McNamara points out at The Corner, such responses miss the point.  The 11^th Circuit ruling was fundamentally about the role of courts and when our courts should step in to limit legislative power.

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As the debt-ceiling debacle shows, Americans are genuinely frightened that our ever-expanding federal government will spend us into national collapse.  But while Americans are delivering a message of limited government to Congress and the President, proponents of small government have actually been sending a completely different message to the judiciary for decades.  That message—that any judge who strikes down a bad law is an “activist”—has been destructive to freedom and conducive to runaway growth in government.

Americans have always believed more in the power of individuals and the free market than in government power.  For example, ABC News and The Washington Times have been asking people the same question since 1984:  Do you favor smaller government and fewer services, or larger government and more services?  The results show a consistent national preference for smaller government.  In 1984, 49 percent of respondents favored smaller government while 40 percent favored larger government.  Today it is 56 percent versus 40 percent.

The American commitment to limited government is embodied in our Constitution.  The Founders were distrustful of government power and they wanted to limit government’s interference in our lives.  Largely ignored in today’s debate over limited government, however, is the role that our courts should play in keeping the government in check.

Our courts are a constitutionally co-equal branch of government.  The Founders spent considerable time debating the best way to ensure judicial independence so that the judiciary could temper overly ambitious presidents and legislatures.

A Constitution that says “no” to government requires judges who are willing to say “no” to government, too.   Yet when judges actually strike down a law as unconstitutional, they are frequently derided as “activists” by people who ordinarily think of themselves as advocates for smaller government.

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In the face of public sector union reforms, leaders within these unions plan on embarking a new strategy to defeat reformist implementations.

On April 28, Newberry Library in Chicago hosted a debate on whether states can stop collective bargaining. Panelist Stephen A. Yokich, an associate general counsel for UAW, unveiled a radical idea for combatting new state restrictions on public sector collective bargaining. His strategy on behalf of the unions is to obtain a Supreme Court ruling stating that collective bargaining by public sector unions is a protecting right under the Equal Protection Clause of the United States Constitution!

The Equal Protection Clause is found in Section 1 of the Fourteenth Amendment of the United States Constitution. This section states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

The Supreme Court has held that this clause protects classes of race, national origin, gender, or religion from laws which are discriminatory, have discriminatory intent, or have disparate impact. Never has the Supreme Court ruled that this guarantee for “equal protection of the laws” applies to any particular group of organized workers! Such a suggestion lies far outside the judicial mainstream and defies the meaning and intent of this important clause.

When a member of the audience questioned the validity of such a novel constitutional law argument, the UAW lawyer replied, “We change what we think about the Constitution in order to adapt to the times that we are in.” Candid response, indeed.

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So, just how important is transparency to Judge Maryann Sumi in Wisconsin?

Taxpayers trying to follow the curious case of the Madison teachers’ job action that closed down the district’s 48 schools for four days in February will get an incomplete picture from official court documents.

There is no official court record of the beginning of the February 18th court hearing during which Madison Metropolitan School District requested an injunction to end its teachers’ sickout. The MacIver News Service has learned that Dane County Circuit Court Judge Maryann Sumi began that hearing without a court reporter present.

On Friday, February 18th,the Madison sickout had been going on for three days, and the district was looking for ways to force teachers back into the classroom.

“As I understand it, MTI communicated that the teachers would be back Tuesday but had no assurances for Monday, and so the district went forward with the legal action on Friday afternoon,” wrote Ed Hughes, Madison Board of Education member, on his blog. “It took some time to find a judge who could hear the motion, but Judge Sumi took the matter on late Friday afternoon.”

Tara Monthie, a court reporter, was on her way out when she got called back to record the hearing.

“It was odd,” Monthie told the MacIver News Service. “I got there and it had already started.”

Ironically, it was Sumi, who issued a temporary restraining order blocking publication of Governor Scott Walker’s budget repair bill which restricted the collected bargaining powers of Wisconsin’s government unions. In that case she was concerned that Wisconsin’s open meetings law may have been violated during the process of passing the law (it wasn’t).

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On Friday, unions scored a temporary victory to maintain their ability to collect union dues from Wisconsin public employees when Judge Maryann Sumi (the same judge who refused to order striking teachers back to work in February) issued a Temporary Restraining Order preventing the implementation of Wisconsin’s new law governing public-sector unions.

Via the Wall Street Journal:

Judge Maryann Sumi said a lawsuit filed by the Dane County district attorney had enough merit for her to issue a temporary restraining order to prevent Secretary of State Doug La Follette from publishing the bill while she reviews the case.

This is a problem. Judge Maryann Sumi should have recused herself entirely from the Wisconsin battle due to her inability to be neutral in this case. You see, Maryann Sumi has a clear conflict of interest. Her son is a political operative who also happens to be a former lead field manager with the AFL-CIO and data manager for the SEIU State Council. Both the SEIU and the AFL-CIO have members who are public-sector employees in Wisconsin. In fact, as a federation, the AFL-CIO can boast of several member-unions that represent public-sector employees. Maryann Sumi is hardly an unbiased judge in the matter.

Jacob “Jake” Sinderbrand, Sumi’s son [see page nine here], runs a company called Left Field Strategies, a firm that works on political campaigns.

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Following Judge Vinson’s declaration that Obamacare is in fact unconstitutional, many on the left have responded by seizing an old conservative lament – judicial activism.  The right has unnecessarily handed the left a minor rhetorical foothold by using the term in an ambiguous way in the past, albeit to criticize decisions fully deserving of such. Because of these past conservative attacks on judicial activism, attacks which were deserved but ill-defined, Obamacare’s defenders have managed to stumble onto some semblance of a point, though not the one they think. Judicial activism, properly understood, can be either good or bad, proper or improper.

It is necessary to start this discussion with some definitions. Specifically, just what is judicial activism? The worst partisans simply use the term to mean any decision they do not like. Some conservatives and liberals alike have used the term this way, and I suspect many Obamacare supporters are now using it thusly. Using judicial activism in this manner accomplishes nothing, as all sides simply talk past one another.

Another definition, one many on the right have historically embraced, holds that judicial activism occurs when judges reach beyond their institutional authority and write legislation, instead of judging it. Under this paradigm, activist judges are seen as supplanting the legislative will with their own policy preferences. This practice is certainly both that of an activist nature and deserving of condemnation, but is it wrong because the judge acted, or because he did so wrongly? It seems to me the real objection ought to be that such decisions stray from the Constitution. There are proper times to overrule legislative action, after all, and which leads me to the third definition.

The third definition is the one now being used by the left to criticize the decision overturning Obamacare, and simply holds that activism is the reversal of legislative acts. This definition is reasonably intuitive – the judiciary is “activist” when it acts – and conservatives have been willing to use it this way as well. For instance, it is this understanding of judicial activism that has lead some conservatives to counsel judicial deference in the face of legislative acts – that courts should only overturn the most egregious legislative overreaches. Hopefully, these conservatives are beginning to see the fault of this approach. The judiciary should be neither principally deferential nor confrontational; it should be Constitutional. Conservatives need to be more careful in their use of such phrases and better isolate the exact fault of particular judicial actions.

To understand this important distinction, let’s consider two landmark Supreme Court cases.

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This doesn’t qualify as much of a revelation since administrative law is Elena Kagan’s primary area of expertise, and one of her few items of legal scholarship is a frequently cited 2001 article entitled “Presidential Administration“. But imagine the outcry from the left if Bush had nominated someone who had taught the following course at Harvard:

In truth, many principled individuals on the left are just as opposed to Kagan as most conservatives, and her legal scholarship and advocacy for expanded Executive Branch powers are a big reason why. But in thinking about this it’s struck me that perhaps by putting so much focus on constraining judicial activism, conservatives have missed a shift in strategy over the past decade by power seekers on the left.

Maybe it’s not judicial activism we need to worry most about, but judges who support the concentration of power and expropriation of the lawmaking function by the Executive Branch.

Think about it. In just over a year, this Administration has assumed control over large swaths of the economy. They are essentially running the largest U.S. automaker, and with Fannie Mae and Freddie Mac they have effective control of the entire mortgage industry. And don’t forget that the Feds essentially own AIG and a large portion of Citibank, and have also now nationalized the student lending industry.

Then there is healthcare reform which once fully implemented will represent the largest accumulation of federal power since the New Deal. Notably, the bill delegates a massive amount of “rule-making” (i.e. law-making) authority to the Health Secretary.

The other legislative priorities for the Administration, if enacted, will delegate to the executive branch regulatory control over the energy sector, and most of the remaining segments of the financial services industry. (No need to include GSE reform – they already control Fannie and Freddie).

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Although words and the meaning they convey mean everything in the law; words mean very little to people with agendas.  This is bad news.  Worse yet, the U.S. Constitution is filled with old words and phrases that, when read out of context, lose meaning over time.  Most frightening, legal commentators who prefer to sidestep our Constitution to accomplish the progressive-statist agenda continue to bash the virtue of seeking our Constitution’s original meaning.

In lockstep with progressive reforms, a recent book, “Keeping Faith with the Constitution,” adopted the term “constitutional fidelity.”  Goodwin Liu was one of the authors, and the focus of another contributor on this topic.  It is asserted that this term “respects the endurance of our written Constitution” and also “explains how its text and principles retain their authority and legitimacy.”  Filled with anti-Justice Scalia propaganda and criticism, it intends – but fails – to strike the middle ground between those who think original meaning controls and those who think meaning should account for the needs of our “progressing” society.  It does nothing of the sort.

At its core, constitutional fidelity asserts that original meaning (which the authors correctly concede is not strict constructionalism, but rather, an exercise of reading words in the context in which the words were enacted) should be sought when interpreting “concrete provisions,” but not the “broad and general principles.”  It is these broad principles, they assert, that should adapt “in light of the conditions and challenges faced by future generations.”  But constitutional fidelity ignores that there is no principled manner to determine which provisions of the constitution are broad, as opposed to concrete.  One might suppose that any provision best suited to confront society’s next “challenge” would be interpreted in such a way.  This is not law. (more…)

As Fiscal Year 2010 finally begins, a judge has struck down Congress’ law ending federal funding of ACORN. It’s ironic in that de-funding ACORN was the only example of fiscal restraint we’ve seen from Barack Obama, even more so since he’s now stacking the courts with judges that will continue to issue such rulings. And perhaps that’s what he’s wanted all along.

ACORN has shown America what the audacity of hope really looks like. In the aftermath of the videos showing ACORN employees engaged in conversations that should have triggered a federal racketeering probe for tax fraud and underage prostitution, Congress reacted to the overwhelming public revulsion to ACORN by enacting a federal law blocking ACORN from receiving any more of your tax money.

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The Bruno jury in Albany is hung. After six full days of deliberation, the Jury has passed notes to Judge Gary Sharpe, a hard-drinking former U.S Attorney for this district, with questions that are all arguably favorable to the 81 year old Former Majority Leader in the New york Senate.

Joe Bruno the legendary longtime leader of the New York Senate Republicans stands accused of ” the theft of honest services, ” but the Feds never proved a crime at trial. New York’s political class is waiting with bated breath for a vedict.

Joe Bruno: Target of Political Hit Job

The Judge  in the Albany trial wanted to give the Jury an “Allen charge” – meaning a directive that they MUST reach a consensus when the have failed to do so. It gives juries the impression they cannot come back and announce they are deadlocked. It is a wicked pro-prosecution tool- after the first note requesting clarifications of the “reasonable doubt” standard- a true jump of the gun.

Supported for his job by Sen. Chuck Schumer, Sharpe has a son who is an Assistant U.S. Attorney in the same office and jurisdiction where Bruno is being prosecuted . Sharpe should have recused himself on that basis alone.

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California has long been the land of fruits and nuts – and now runaway federal courts.

Of course, a long time ago, in a place far, far away, the legislatures of individual States of these United States, had a far greater say in the lives of their citizens.  Indeed, for the first 150 years of our existence, the federal government – the Congress and the Courts – had little to say or do in the lives of Americans – the Civil War excluded.

With the advent of the Democrats’ Big Government New Deal, of course, all of that changed.  The Roosevelt Democrats increased the federal budget tenfold – but not without the considerable help of a very activist Supreme Court.  Recall that Roosevelt threatened to pack the Supreme Court which then proceeded through resignations and reinterpretations to redefine our Constitution.  The result was a Big Government takeover the like of which the Supreme Court originally struck down during Roosevelt’s first term.

It also was the dawning of the age of the activist courts which threatens our Liberties to this very day.  Thomas Jefferson, of course, warned us of this possibility.  According to Jefferson:

The great object of my fear is the federal judiciary.  That body, like Gravity, ever acting, with noiseless foot, & unalarming advance, gaining ground step by step, and holding what it gains, is ingulphing insidiuously the special governments [i.e, the states] into the jaws of that which feeds them.

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