Issue of judicial activism takes the hot seat

Published: September 13th, 2010

Category: Events, Feature

The issue of judicial activism has recently fomented a polarizing controversy among both laymen and legal scholars. With that in mind, the Federalist Society kicked off its fall lineup of events by hosting attorney Clark Neily to speak about the subject.

Neily, however, does not see judicial activism as being widespread issue.

“I agree that it happens once in a while,” he said, “but not nearly to the extent that a lot of people would have you believe.” Instead, Neily sees the problem of being what he called “judicial abdication.” He explained the term as meaning “refusing to enforce reasonably clear textual limits on government power.”

That Neily views this as being an important issue should come as little surprise to those who know his recent legal background. Neily is a senior attorney with the Institute for Justice, which bills itself as the “nation’s only libertarian public interest law firm.”

To illustrate the idea of judicial abdication, Neily discussed the 2005 Supreme Court case of Kelo v. City of New London. The case involved the use of eminent domain, a power that governments possess that enables them to seize private property against the will of the owner. The Fifth Amendment prevents this taking unless compensation is afforded, and even then, it was long held that the property taken must then be used for the public good.

What made this case so controversial was that the land to be seized was then going to be redeveloped into nicer homes, a seemingly private interest. Nevertheless, the court found that such a taking was authorized. Neily did not mince words in describing his disagreement with that decision: “I think it’s fair to say that they basically rewrote the public use provision,” he said.

Neily saved even stronger words for the decision in Raich v. Ashcroft. This case, also decided in 2005, dealt with the federal government’s ability to enforce its drug laws in the wake of California’s medical marijuana law. The government claimed the power to enforce drug laws under the commerce clause, but the question that this case presented was whether this power was still applicable when someone grew their own marijuana and used it within the state. The court held that this intrastate activity still fell under the commerce clause. “I think that is clinically insane,” Neily said.

The common link of these and other cases that Neily brought up was that they were decided in a way that limited personal liberties. “A theme that I see in modern constitutional law is the way that courts treat ambiguous provisions of the constitution as a one-way ratchet in favor of government power,” he said.

Although Neily said he views ambiguity in the Constitution as a necessity, he said it makes it even more important that judges are consistent when analyzing ambiguity. Neily, however, explained his belief that most judges change their analysis based on whether it would strengthen government power or individual liberties, and that the odds often seem slanted in the government’s favor.