Phoenix Attorney Says Healthcare Reform Law Rekindles Debate Over Activist Judges

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On Monday, a Florida federal judge ruled President Barack Obama’s health care reform law to be unconstitutional. To date, two federal judges have upheld the law and two others have voided all or portions of it. The controversy once again raises questions about judicial activism.

These statistics demonstrates that those justices considered to be more conservative voted most often to overturn Congressional enactments, while the arguably more liberal justices do so the least.

On Monday, Judge Roger Vinson of the U.S. District Court for Northern Florida ruled President Barack Obama’s healthcare reform law to be unconstitutional. (State of Florida by and through Bill McCollum, et al. v. United States Department of Health and Human Services, et al. (N.D. Florida, 3:10-CV-91-RV/EMT)).

To date, two federal judges have upheld the law and two others have voided all or portions of it. (Commonwealth of Virginia ex rel. Kenneth T. Cuccinelli, II, in his official capacity as Attorney General of Virginia v. Kathleen Sebelius, Secretary of the Department of Health and Human Services, in her official capacity, (E.D. Virginia, 3:10-CV-188-HEH); U.S. Citizens Association v. Sebelius (N.D. Ohio, NL 5: 10-CV-1065); Thomas Moore Law Center v. Obama (E.D. Mich, 10-CV-1115); Liberty University, et al. v. Timothy Geitner, Secretary of the Treasury, et al. (W.D. Virginia, 6:10-CV-00015)). The controversy once again raises questions about judicial activism.

Many political conservatives have long complained about a judiciary riddled with liberal activist judges. It is claimed that these judges legislate from the bench consistent with their personal political views and ideologies, often overturning laws enacted by elected legislative bodies.

More recently, some political liberals have leveled the same charge at the conservative majority on the United States Supreme Court. They point, for example, to the decisions in Bush v. Gore which halted the 2000 presidential election in favor of George W. Bush, as well as the Citizens United case which effectively voided laws prohibiting corporations and unions from broadcasting campaign advertisements.

Phoenix attorney Van O’Steen points to academic research that sheds light on the controversy. O’Steen went to the Supreme Court in 1977 and won the First Amendment case giving lawyers the right to advertise, and consumers the right to receive information about their legal rights. See Bates and O'Steen v. State Bar of Arizona, 433 U.S. 350 (1977).

“In order to assess degrees of activism among judges, it is first necessary to define the term judicial activism,” O’Steen said. In their 2005 research, Yale law professor Paul Gerwitz and his colleague Chad Golder defined the term by posing this question: How often has each justice voted to strike down a law passed by Congress?

“There have been some changes in the membership of the Supreme Court since 2005,” O’Steen noted, “but the study results are still instructive.” Using the activist definition, above, these are the study findings in order of most activist to least:

Thomas -- 65.63%
Kennedy -- 64.06%
Scalia     -- 56.25%
Rehnquist -- 46.88%
O’Connor -- 46.77%
Souter -- 42.19%
Stevens -- 39.34%
Ginsburg -- 39.06%
Breyer -- 28.13%

(Paul Gerwitz and Chad Golder, "So Who Are the Activists?," The New York Times, July 6, 2005, available at http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html.)

“These statistics demonstrate that those justices considered to be more conservative voted most often to overturn Congressional enactments, while the arguably more liberal justices do so the least,” O’Steen observed. “By this standard, the conservative justices are clearly the most activist,” he added.

“It is not always bad to be an activist judge. Some laws should be invalidated,” said O’Steen, “but, the widely held belief that judicial activism comes largely from liberal justices is demonstrably wrong.”

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