The Sky Is Falling?

Let's take two entirely hypothetical federal court decisions:

1. Congress passes a law which inserts language into a pledge which is recited daily by many schoolchildren. The new language, "under God", is inserted as a reaction against "godless" communism, with statements both by Congress and the President which reflect an intention to insert religiosity into the otherwise secular pledge. Critics claim that this flies in the face of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." Ultimately, a federal court holds the insertion of the language to have been unconstitutional. With near unanimity, "conservative" pundits condemn this as an example of a federal judiciary run amok, defying the will of the people, Congress and the President.

2. Congress passes a law which restricts the manner in which certain groups can endorse candidates for federal office within thirty or sixty days of an election - the groups may still run issue ads which do not endorse a candidate, but if they wish to actually endorse a candidate they must do so through a PAC (which could also result in the identification of those who donate $1,000 or more to any such ad campaign). This law is passed by Congress and signed by the President on the basis of a perceived need for "campaign finance reform." Critics claim that this flies in the face fo the First Amendment: "Congress shall make no law ... abridging the freedom of speech, or of the press". Ultimately a federal court holds the law to be constitutional. With near unanimity, "conservative" pundits condemn this as an example of a federal judiciary run amok, even though the court acted in accord with the will of the people, Congress and the President. References are made to this being a "sad day for freedom of speech", or even as the "death" of the First Amendment.

Can the reason for the different reaction be boiled down to pure hypocrisy? Courts are evil and activist when they overturn unconstutional laws which don't accord with the values these pundits wish to impose on society? Yet courts are also evil and activist when they sustain laws which sit on the fence - good arguments can be made both for upholding and overturning the campaign finance reform provision - if the decision doesn't accord with the immediate short-term goals of the pundits (or their constituencies)?

I don't recall even one "conservative" pundit who complained when Scalia authored an opinion which increased "sovereign immunity" to unprecedented levels - even though there is absolutely no constitutional basis for "sovereign immunity". (Is this the same Scalia who routinely complains that courts don't follow the text and original intent of the constitution, and instead impose their own values? It sure is.)

In contrast, "conservative" pundits routinely complain that "there is no constitutional right to privacy", usually in the context of attacks on abortion rights or the overturning of state sodomy laws. (If we turn to original intent, weren't the federalists expressly concerned about this possibility - that various factions would try to undermine any right not specifically enumerated in a "Bill of Rights" - when arguing against such a Bill of Rights? Wasn't this supposedly resolved by the Ninth Amendment?)

Let's face it - modern "conservatives" love judicial activism, and the new breed of "conservative" judges seems to enjoy smashing decades or centuries of precedent in order to achieve a particular political end.

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