If You Can't Teach Gym

In Annie Hall Woody Allen posited an employment hierarchy that went more or less like this: Those who can't do, teach. Those who can't teach, teach gym. I would argue that you can continue along that line: those who can't teach gym, become ombudsmen. Then, at the very bottom of the hierarchy is the Washington Post fact checker.


I think most of us would accept without argument that a fact checker should a.) go to the public record (the intertubes) to verify basic information. b.) when assertions go more into the world of opinion, i.e., opinion checking, be a neutral arbiter between what is being asserted and the real physical world.


Take today's column. The fact checker dismisses the claim of judicial activism by quoting some guy who works at Cato. I suppose the assumption is that a libertarian institutional wouldn't hire ideologues that support the tenets of libertarianism. Which is, basically, a really crappy assumption.


Here's what the Cato guy says:

“Judicial activism is just a charge that conservatives and liberals make at each other when they don’t like a law being struck down,” Barnett said. “It’s really vacuous. It’s a cheap shot that all politicians love to take because it’s easy to level.”

 For the record the expression "Judicial Activism" first appeared in print by a vacuous hack named Arthur Schlesinger, Jr., in a sleazy tabloid called Fortune Magazine. Although, the article comes out in the end for judicial restraint, it was intended as a nuanced analysis of the New Deal judges. Here's Schlesinger on the article:

A half century later the article seems to me analytical,
measured and quite well written.  I tried to state each side as fairly
as I could, though I came out in the end for judicial self-restraint.
The memory of the judicial activism practiced in favor of business
by the Nine Old Men only a decade before was still vivid in mind,
and one did not want to make activism the routine philosophy of the
Court.

So, basically a cheap shot, just like the guy from Cato alleges. (I kid.)


My real objection isn't that the Washington Post quotes some guy who probably has a political and ideological bias. It's that it leaves the reader with the impression that Judicial Activism doesn't really exist, or that it exists only in the imagination of cry baby liberals who to this day believe that Al Gore won the 2000 election. Which he did.


Wikipedia has a pretty straightforward definition of Judicial Activism: "Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law." So, as a hypothetical example, if you are Clarence Thomas, and your judicial philosophy is "I hate Democrats because they were mean to me," then you just might be a judicial activist.


Let's talk about Scalia for a sec. Scalia was quoted as follows during the Supreme Court's review of the Affordable Care Act:

“[I]f people don’t buy cars, the price that those who do buy cars pay will have to be higher,” the Supreme Court justice said. “So you could say in order to bring the price down, you are hurting these other people by not buying a car.”

That's a fairly remarkable statement. Scalia isn't just arguing about the ACA. He's arguing about any form of insurance plan, since insurance works by having one group of people (those who collect fewer benefits) subsidize those who collect more benefits. I don't see how Medicare would survive Scalia's test. In fact, Medicare is more unfair because the taxpayer is paying for someone else's benefits, and not for themselves.


Come to think of it, has Medicare ever been challenged at the Supreme Court level? I'm not sure it has. If it was, would the guy from Cato admit this might just be Judicial Activism? Probably not.