by Eyck Freymann
For years, every time a conservative issue lost in court, the right began tossing around the term "activist judges." The implication of course is that the extremist liberal judge is grossly abusing his power by overturning something he or she has no right to rule on. Of course, as Tom Schaller compellingly demonstrated last year, there is substantial evidence that conservative courts and judges are more likely to overturn precedents than their liberal counterparts. No one is surprised by the stem cell decision, and no conservatives are bemoaning the encroaching power of the judiciary.
Vaughn's decision to overturn Prop 8 was less surprising than the GOP's reaction, which was decidedly muted. This is a subject for a longer post and a debate on the gay marriage "tipping point," but it is clear that the mention of homosexuality does not provoke the fear and anger it did on the 2004 campaign trail. After the decision there were a few cries of "activist judge" and a failed campaign to question Vaughn's own sexual orientation, but the counter-assault was weak, fragmented, and uncoordinated.
The Republican party is not going to do or say anything right now that could anger left-leaning young people enough to come to the polls in November. They like their momentum right now. But with these last two decisions in mind, it's worth re-examining the hackneyed 'activist judge'. Conservatives can never be 'activist judges,' even when they overturn established precedent and wreak havoc in the scientific community. It quickly becomes clear that the phrase doesn't actually mean anything at all, doesn't stand for any pure ideology within the GOP. The term 'activist judge' is as hollow as the philosophy it depicts.
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