A headline from today’s LA Times reads (hat tip):
Advocates of judicial restraint say conservative justices should be wary of the impulse to strike down the healthcare law passed by Congress.
From reading that, we find that the LA Times is not concerned with potential judicial activism coming from any of the more liberal members of SCOTUS, but instead that of Chief Justice Roberts, and Justices Alito and Thomas – and their concerns are supposed to be given credence by the referencing of two, count ’em, two “Reagan administration lawyers” … lawyers who you would assume, based on the mention of REAGAN, would be conservative Republicans. From the piece:
WASHINGTON — When the incoming Chief Justice John G. Roberts Jr. came before the Senate for confirmation seven years ago, President Reagan’s solicitor general gave him a warm endorsement as a “careful, modest” judge.
“He’s not a man on a mission,” Harvard Law professor Charles Fried testified, adding that Roberts was not likely “to embark on constitutional adventures.”
But two years ago, the Roberts-led Supreme Court struck down the federal and state laws that for a century had barred corporations and unions from pouring money into election campaigns.
And last week, the court’s conservatives, including Roberts, suggested they may well strike down President Obama’s healthcare law as unconstitutional. If so, it would be the first time since 1936 that the Supreme Court voided a major federal regulatory law.
After the healthcare arguments, Fried was among those who worried aloud about the prospect of the Roberts court embarking on a new era of judicial activism.
If the court were to invalidate the healthcare law, “It would be more problematic than Bush v. Gore,” Fried said in an interview, referring to the case that decided the 2000 presidential race. “It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before.”
His comments highlight a growing divide between an earlier generation of judicial conservatives who stressed a small role for the courts in deciding national controversies and many of today’s conservative justices who are more inclined to rein in the government.
Pepperdine law professor Douglas W. Kmiec, another top Justice Department lawyer under Reagan, said he hoped the justices would “come to their senses” and uphold the law as a reasonable regulation of interstate commerce.
The inference here is: If conservative Republicans from the Reagan years are concerned about conservative judicial activism, we should all be REALLY WORRIED!
Only problem here is the LA Times didn’t bother to note that both Fried and Kmiec are hardly considered “conservatives” any more (if in fact they ever were) and endorsed Obama in 2008 until several paragraphs down in the story after, I suspect, many casual readers reading it would have lost interest beyond the glaring headline and first few paragraphs.
Karl at Patterico’s Pontifications points out:
David Bernstein correctly notes a more accurate title for this page one propaganda would be “Lawyers Who Voted for Obama Want his Health Care Law to be Upheld“:
It turns out that the only “Reagan Administration lawyers” they are able to quote are Charles Fried and Doug Kmiec, both of whom quite publicly endorsed candidate Obama in 2008. Kmiec, in fact, was rewarded with an ambassadorship for his service.
As for Fried, one of his former constitutional law students, Dan McLaughlin, observes:
It is fair and accurate to describe Prof. Fried as a former Reagan official and former member of the GOP legal establishment. But it is deeply misleading to suggest that he speaks today for some element of mainstream thought on the Right, or to tout his views on Obamacare without presenting to readers his support for Obama, his effective divorce from the modern GOP, and the extreme nature of his views on the government’s ability to make you buy broccoli.
Also, we’re supposed to believe that the only “experts” the LAT could find on the issue of judicial activism in and of itself on the SCOTUS were “Reagan-era lawyers concerned about conservative judicial activism”?
I worry about “judicial activism”, too. I also worry about mainstream media activism. Thanks, LA Times, for the reminder.