I said, at the end of my “Clearing Up the Confusion...” piece, that when you hear a pundit talking about “strict construction” or “judicial activism”, he or she likely doesn’t know, or doesn’t care, what he or she is talking about. George Will recently proved me wrong. In one of his Newsweek columns, he exposed the contradictions and the hypocrisy:

Last week the first major decision handed down by the Roberts Court demonstrated the problematic nature of the simplifying categories by which justices and rulings are characterized. The 6-3 decision, which affirmed a ruling by the very “liberal” U.S. Ninth Circuit Court of Appeals, upheld the constitutionality of Oregon’s law legalizing physician-assisted suicide. The Supreme Court’s decision could be characterized as “conservative” – exemplifying judicial modesty in deference to policies adopted democratically.

The three dissenters – John Roberts, Clarence Thomas and Antonin Scalia – favored striking down the law that Oregonians passed in a referendum and resoundingly reaffirmed by a 60 percent vote against an attempt to repeal it. The dissent by the three “conservatives” could be characterized as “liberal” – “judicial activism” favoring the Federal Government’s aggrandizement of its power at the expense of Federalism.

....

If Congress did imply for the Attorney General a power that the court says Ashcroft wrongly claimed, Congress can now explicitly do so. And if Congress wants to criminalize physician-assisted suicide, it can do that, too. Social “conservatives”, unchastened by public disgust about their attempt 10 months ago to drag the federal government into the Terri Schiavo tragedy, might now try to get Congress to legislate what Ashcroft tried to impose on Oregon....

This is, in five ways, how things ought to work. First, nine years ago the court held that there is no Constitutional right to die, so such a right must be legislated, not tendentiously tickled from the Constitution’s text. Second, the court should construe controversial Executive Branch interpretations of laws. Third, Congress can correct what it considers judicial misconstruings of its enactments. Fourth, an intense Senate minority, or even a single senator, should be a serious, if not always decisive, impediment to a congressional majority imposing its will on all 50 states.
Fifth, Federalism should often mean broad latitude for a single state to be, as Justice Louis Brandeis said, a “laboratory” to “try novel social and economic experiments without risk to the rest of the country.”

So, what is “conservative” about conservatives’ complaints about the court’s decision?

[Notes - See George F. Will, “About Those Categories....” Newsweek, Jan. 30, 2006, p.68. - The views expressed on this political blog and law blog on judicial activism, strict construction, Supreme Court Justices and tort reform are the personal views of Steve Herman and are not intended to represent the views of Herman Herman Katz & Cotlar, LTLA, TLPJ, the Civil Justice Foundation, or any other organization.]