Activist Judges

Well, I think its safe to assume after two weeks of waiting breathlessly by the phone that the New York Times won't be publishing my letter to the editor. I composed it in response to conservative law professor Ann Althouse's op ed piece* which excoriated Judge Taylor's decision to invalidate the Bush Administration's evesdropping program. Here it is:

A useful gauge of the health of the conservative movement in America is the extent to which it blames activist judges for the failure of its agenda. Clearly, the conservatives have seen better days. What is especially curious about Ann Althous’s op-ed piece is the fact that she breaks out the tired old saw when the only thing Judge Taylor’s decision does is to interpret and ultimately uphold the FISA “secret court” statute which was duly passed by a Republican controlled Congress. The term “activist Judge” as I understand it implies that the Judge does more than interpret the law, rather the Judge creates a legal structure out of whole cloth to support his or her ideological predilections. A recent example of judicial activism can be found in the Bush v. Gore case where a conservative Supreme Court exhibited a shameful abdication of judicial restraint by throwing the election for George Bush while dressing up its poorly reasoned decision in flowery rhetoric which is now disavows. Could Judge Taylor have spent a little more time developing her Fourth Amendment analysis? That straw man really isn't the issue here. Was her decision to strike down the administrations eavesdropping program an act of judicial activism? No way. While reading Ms. Althous’s article I was reminded of the definition of an activist judge that I was taught in law school; an activist judge is simply defined as a judge with whom you happen to disagree.

*Sorry there's no link to the op-ed but you need to be a NYT gold select member or something like that to read it.