Activists by Invitation
16th June 2011
The existence of broadly or sloppily written statutes that require courts to fill in the blanks or resolve internal contradictions is hardly news. Indeed, it’s the ordinary business of statutory interpretation. But a Supreme Court decision last week — more precisely, a dissenting opinion by Justice Antonin Scalia — shone a spotlight on a more troubling subset of the problem: criminal laws that leave it up to judges to define the crime. It’s hard to imagine a more activist judicial endeavor, but it’s one with which Congress seems surprisingly comfortable.
Odd that Times columnist Linda Greenhouse should complain about this, since most of these flaws are the result of legislative activity by liberals whom she otherwise unflaggingly supports. The Supreme Court case she cites has Justice Kennedy sounding like a butthead and Justice Scalia sounding like a person of good common sense, which strikes me as about right; if she’s siding with Scalia (as it would appear) in calling Congressional laws dysfunctional, it would be the first time in her life she ever got closer to Scalia than a ten-foot pole.
And, of course, the ‘judicial activism’ that she is discussing is not the same thing as the ‘judicial activism’ of which critics of such activism speak: Roe v. Wade, for example, the poster child for ‘judicial activism’, doesn’t involve an unclear law but an imaginary Constitutional right that 5 Justices pulled straight out of their asses. So this would appear to be another attempt to muddy the waters with respect to an issue that liberals know would make them appear stupid if those waters were clear.