Judicial Activism

James Taranto has this fine bit on Dec 11:

Protecting Porn but Not Politics
In the case of McConnell v. Federal Election Commission, the U.S. Supreme court yesterday upheld key provisions of the McCain-Feingold campaign-finance "reform" law. National Review blogress Kathryn Lopez notes this passage from Justice Antonin Scalia's dissent, which sums matters up nicely:

Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming, would smile with favor upon a law that cut to the heart of what the First Amendment is meant to protect: the right to criticize the government.

This wonderfully encapsulates the perversity at the heart of contemporary American liberalism: "Free speech," in this view, protects everything except actual political speech. And of course we're all familiar with variants of this argument, such as: Criticizing anti-American speech is censorship, while censoring conservative speech is mere criticism. Or: It's un-American to criticize people who side with America's enemies; indeed, as "dissenters," they are the true patriots. It's mind-boggling that this sort of nonsense gets taken seriously.

And John Fund of the WSJ has a sensible analysis of why judges shift -- it's because of the praise they receive.

"Judge Laurence Silberman, recently retired from the U.S. Circuit Court of Appeals for the District of Columbia, made a landmark speech in 1992 that explained the kind of pressures that nudge someone like Justice O'Connor away from her conservative moorings. Judges, he noted, are often swayed by a desire for praise. Their judicial vanity is often flattered when reporters or professors at elite law schools write glowing descriptions of how they've "grown in office,"--that is, come to see a liberal point of view more favorably. Journalists "have a lot more impact than [they] think," he noted ruefully. He said the most prominent media practitioner of the effort to "put political heat" on judges to move them in a more activist direction was Linda Greenhouse, then and now the legal affairs reporter for the New York Times. Judge Silberman called this process of co-opting judges the "Greenhouse effect."

"The crucible for silver and the furnace for gold,
but man is tested by the praise he receives." (Prov 27:21)