They skulk about in black robes. They use their gavels to chip away your freedom. They make unilateral decisions from their unelected pedestals. They HATE YOUR FAMILY!! They are … the Activist Judges!
One of my favorite examples of Right-wing blowhards co-opting language for their own purposes is the phrase “Activist Judge”. What does that even mean? In what way is determining that the equal protection clause of the U.S. Constitution actually provides >ahem< equal protection to everyone, regardless of their sexual orientation, activism? The term “judicial activism” dates back to 1947. Even then, although the initial use was less Left vs. Right, legal scholars were skeptical of the term, finding it vague, misleading about the role of judges, and insulting to professional ethics.
Since the 1990′s the term has been waved by “pro-family” (i.e., anti-gay, anti-choice, anti-woman, anti…) groups any time a judge makes a decision they dislike. Recent examples include Lawrence v. Texas, Perry v. Schwarzenegger, and Varnum v. Brien. Retroactively, the wingnuts have applied the term to other decisions they dislike, such as Roe v. Wade and Brown v. Board of Education.
One of the complaints that the obfuscationists like to use is that the judges making these rulings are “unelected.” Irony #1 – many judges are elected, including Appellate judges and Supreme Court justices in many states. Irony #2 – when they are not elected, it is part of the system of checks and balances, intended to protect the judicial system from the fluctuations of public opinion. We live in a representative democracy, selecting officials to make decisions on our behalf. Selection of judges and justices is one of those decisions. Irony #3 – in many places even appointed judges are subject to recall, an opportunity for the people to at least “unelect” them.
The most offensive thing about the term, of course, is the hypocrisy with which it is applied. (Shocking! Hypocritical wingnuts! Where are my smelling salts?) Make a decision protecting minorities, saving the environment, or requiring fair treatment? ACTIVISM! Make a decision illegally appointing the President of the United States or saying that corporate spending is the same as free speech? Well that’s some good old-fashioned restraint. Bleagh.