Look Who's An Activist Judge Now

One of the grander American political myths is that liberal and progressive federal judges are 'activist' judges while conservative jurists rule closely to precedent. Political myths are those clichés that bad political journalists and columnists recite without question off mental three by five cards when they are thrust into political situations they know nothing about.

The truth of the matter, as observed by legal scholars during Sonia Sotomayor's nomination hearings, is that much of the liberal or progressive agenda is now "settled law." In fact, if conservatives are to achieve their agenda they will have to rely on activist judges to overturn many precedents set by the U.S. Supreme Court over the last four decades.

Of course, this is in stark contrast to the plainsong chant we have heard from conservative appointees to the court Samuel Alito and John Roberts and their senatorial supporters. NBC news recalls the quote: "Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire... I will remember that it's my job to call balls and strikes and not to pitch or bat."

Well, guess what sports fans. When the Roberts edition of the US Supreme Court overturned a list of federal laws some dating back to 1907 and striking previous court decisions as recent as four years ago, that's judicial activism. In fact now that the 5-4 split on the court has been fully cemented, many court observers expect the court to start rolling back other federal laws and court decisions that validate the power of the federal government. Heck, it is said that Justice Clarence Thomas advocates a return to days just after the passage of the Constitution in the late 1700's.

If you are a First Amendment absolutist – a place where many civil libertarians reside, you might somewhat agree with the decision that adds more voices to the 'marketplace of ideas' even if they are carrying a fire hose. But, please, don't shovel any of that poo that conservatives are not 'activist judges.'