NYT: "Psst...Justice Scalia...You Know, You're an Activist Judge, Too"

The Times brings up a point that is often overlooked: that conservative judges are just as willing to flex their "activist" muscles as liberal ones, yet for some reason this fails to raise the ire of the Republicans now attacking the judiciary. There is a fundamental hypocrisy in the conservative furor over "activist judges" - namely because the term is only applied to judges whose rulings conservatives dislike.

When conservatives complain about activist judges, they talk about gay marriage and defendants' rights. But they do not mention the 11th Amendment, which has been twisted beyond its own plain words into a states' rights weapon to throw minorities, women and the disabled out of federal court.

The 11th Amendment says federal courts cannot hear lawsuits against a state brought by 'Citizens of another State, or by Citizens or Subjects of any Foreign State.' But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that 'despite the narrowness of its terms,' the 11th Amendment has been understood by the court 'to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.' If another judge used that rationale to find rights in the Constitution - in this case, rights for states - Justice Scalia's reaction would be withering...

When it comes to judicial activism, conservative judges are no better than liberal ones - and, it must be said, no worse. If conservatives are going to continue their war on the judiciary, though, they should be honest. They do not want to get rid of judicial activists, a standard that would bring down even Justice Scalia. They want to rid the courts of judges who disagree with them.