Tom Zirpoli: Waffling views on judicial activism

Tom Zirpoli

In 1803 the Supreme Court ruled in Marbury v. Madison that it had the power to review laws passed by Congress and decide if they were constitutional. Since then, politicians of all stripes have applauded or disapproved of the court's rulings, depending on their own political point of view.

Conservatives have berated the court's 1973 ruling in Roe v. Wade giving women the constitutional right to have an abortion. Liberals have criticized the court for throwing out campaign donation limits and for expanding police strip-searching powers.

After years of bashing the courts and judges that form the heart of our judicial system, conservatives have recently found love for the judicial branch of our government. This change of heart seems to have started after the Supreme Court heard arguments about and seemed ready to pull the plug on the Affordable Care Act.

Conservatives have railed against judges for what they call "judicial activism." A judge or court of judges is practicing judicial activism, says Republican Senator John Cornyn, of Texas, when the judges take "power away from the elected representatives and, thus, the people themselves."

Of course, the Affordable Care Act was passed by Congress and signed into law by President Barack Obama in 2010. If the court strikes down the Affordable Care Act, would that be an example of judicial activism?

In 2005, when the courts ruled that Terri Schiavo's husband could end years of life-support for his terminally ill wife, Republicans called the Court "arrogant" and "out of control." Congress had passed a law specifically targeted to prevent Schiavo's husband from deciding the fate of his wife. Many people thought that in this case Congress was practicing legislative activism, but the Court ruled it unconstitutional.

Criticizing the courts for rulings going against their legislative wishes is nothing new for conservatives or liberals. Not only have they criticized Roe v. Wade since 1973, Republicans have done all they can to block the practical application of the Supreme Court's ruling in that case. Indeed, to say that Republicans have been disrespectful of the Court's ruling in Roe v. Wade would be an understatement.

Thus, it comes as a surprise that many Republicans would be upset following a few comments by President Obama regarding the Supreme Court and the new health-care law. After all, Obama simply said that if the Supreme Court overruled Congress on the Affordable Care Act, it would be an "act of judicial overreach."

Now, where have we heard that before? Yet, Republicans lectured Obama and told him to "back off" because the courts needed to be "respected, regardless of" their rulings.

Actually, Obama was agreeing with people like Sen. John McCain, who criticized activist judges who don't understand that Congress, not the courts, create law. Obama was also agreeing with President George W. Bush, who stated that "judges ought not to take the place of" Congress and that the courts should "leave the legislating to the legislators."

Where was the outrage from the GOP when presidential candidate Newt Gingrich suggested that judges who rule against the will of Congress be removed from the bench? And where was the call to "back off" when Michele Bachmann stated in Iowa during her presidential campaign that the president and Congress can "limit the subject matter that justices can rule on."

As a presidential candidate, Rick Santorum stated that citizens should work to "defeat" judges that rule in favor of gay marriage. So much for showing the courts respect regardless of their rulings.

In truth, all three branches of government form the foundation of our democracy. It is the job of each branch to keep the other two in check. We decide who makes those decisions at the ballot box.