Gripes About Liberal Judicial Activism Are ‘Phony,’ Says Cohen


In a Time magazine column, attorney and writer Adam Cohen takes on the popular assertion that liberal judges engage in “judicial activism” while conservative judges simply apply the law as it is written. Cohen writes, “It’s a phony claim. Conservative jurists are every bit as activist as liberal ones. But the critique is also wrong as an approach to the law. In fact, judges always have to interpret vague clauses and apply them to current facts – it’s what judging is all about.”

Cohen continued, “To hear conservatives tell it, America has long been under attack by liberal judges who use vague constitutional clauses to impose their views. This criticism took off in the 1950s and ’60s, when federal judges were an important driving force in dismantling racial segregation. Conservatives say that courts should defer to the decisions made by Congress, the president and state and local officials – the democratically elected parts of government. When they interpret the Constitution, they should apply the plain words and original intent of the framers. If they do, conservatives insist, the right result will be obvious.” Cohen cited retired Supreme Court Justice David Souter, who said in a speech at Harvard last month that this version of a judge’s role “has only a tenuous connection to reality.”

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