Somin Remarks on Judicial Activism Carried in UK Newspaper

In a Glasgow newspaper article, Professor Ilya Somin defends against charges that U.S. Supreme Court Chief Justice John Roberts and conservatives on the high court have shown a disregard for legal precedent.

"Roberts never said he wouldn't vote to overrule any precedents," says Somin. "You can call it activism if you like, but I think the court would be failing to do its duty if it didn't strike down unconstitutional laws."

Charges of judicial activism have dogged the Court as its announced June 28 ruling on the Affordable Care Act (ACA) approaches, with critics pointing to a series of 5-4 rulings issued by the conservative majority, with four liberal justices in dissent.

Commenting on the ACA's individual mandate requiring individuals to purchase health insurance or pay a fine, Somin says, "It has very important implications for the constitutional principle of limited federal government power. If the government wins this case, there will be no limit to that power. If, on the other hand, the challengers win, then the idea that congressional powers are limited will be reinvigorated."

Will the NHS die at the hands of right-wing judges? Sunday Herald (Glasgow, UK), June 24, 2012. By Andrew Purcell.


"'What's really at stake here is whether or not judges are bound by the text of the Constitution,' says Ian Millhiser, Senior Constitutional Policy Analyst at the Centre for American Progress. 'If they decide there is no longer a constraint on their discretion, there is nothing that judges cannot do. That strikes me as tremendously frightening.'

"In the seven years that Roberts has led the court, it has fulfilled one Republican campaign pledge after another. It has ruled that there is no limit to corporate spending in elections, that all handgun bans are unconstitutional and that there is no legal basis for affirmative action. It has curtailed the rights of consumers seeking to bring class action lawsuits and made discrimination claims more difficult to pursue.

"Stephen Spaulding, Staff Counsel at liberal pressure group Common Cause, says Republicans, unlike Democrats, understand that the court is a partisan body: 'I think that progressives have approached the court as a place of justice, whereas the right wing has approached the court as a place of pure power.'

"Naturally, conservatives do not see it that way. They believe the federal government has exceeded its constitutional authority and must be held in check."

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