01 June 2004

The whole "partial birth abortion" controversy sheds considerable light on so-called "judicial activism." In a decision issued today, Judge Phyllis Hamilton noted that "activism" isn't limited just to judges:

Nevertheless, while recognizing the importance of the issue, this court need not articulate the precise degree of deference to be accorded the congressional findings in this case. That is because, even if this court were to assume that the findings are entitled to the most stringent standard of deference advocated by the government and Congress: that of substantial deference, the court concludes for the reasons set forth below, that Congress has not drawn reasonable inferences based on substantial evidence, and its findings are therefore not entitled to substantial deference.

Planned Parenthood v. Ashcroft, No. 03-4872 (N.D. Cal. Jun. 1, 2004), slip op. at 84 (PDF, 527kb). This far from the most damning passage in Judge Hamilton's opinion.

As noted, some of the "findings" made by Congress include legal interpretations of Stenberg and other Supreme Court jurisprudence. There is no dispute that this court reviews issues of constitutional law de novo. Accordingly, Congress' [sic] legal conclusions and its characterization of the Supreme Court's holding in Stenberg, and any additional legal analysis, is not entitled to deference by this court. Nor are any of Congress' [sic] legal conclusions, which may be disguised as factual findings, entitled to deference by this court. However, to the extent that such interpretations provided Congress with a framework for its factual findings, the Court discusses those findings below and notes that many of Congress' [sic] legal interpretations are inaccurate and mischaracterize Supreme Court precedent.

Id., slip op. at 68. It seems, then, that "activism" cuts both ways, if any way at all. One cannot argue that a court's actions in carving out a new right are "activist" when Congress's actions in defying the "judicial power" of the Supreme Court on a constitutional issue are not. At least, not with simultaneously intellectual honesty and a straight face. In other words, "activism" is action not in accordance with one's ideological goals.