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By J SWYGART
It’s a phrase most often churned out by Republicans, tea party sympathizers or right wing extremists (if that combination seems redundant, it’s because most often it is) following court decisions which don’t match their particular ideals.
Case in point: Presidential wanna-be Newt Gingrich, whose formal exit yesterday from the GOP campaign came months after his unofficial departure, late last year said that, as president, he would have activist judges arrested. He cited in particular an incident in which a sitting federal judge ordered students not use the word “benediction” in their high school graduation. It’s gotten just that goofy out there.
Nonetheless, three high-profile cases currently tied up in the U.S. and Indiana Supreme Courts — once decided — will almost certainly bring screams of “activist judges” from those on the losing side. And in all three instances, this time around it will likely be Democrats and liberals doing the screaming.
OBAMACARE: The prevailing wisdom is that the U.S. Supreme Court will strike down all, or parts, of the Affordable Care Act, President Obama’s health care law. In particular, the so-called experts believe the justices will reject the individual mandate portion of the law which penalizes those who decline to buy health insurance. Activism, and partisan politics, will be alleged whatever the outcome. And those allegations will probably be accurate.
ARIZONA IMMIGRATION: The Washington Post reported last week that the U.S. Supreme Court “seemed receptive” to upholding a key provision of the Arizona crackdown on illegal immigration which, detractors say, promotes racial profiling and discrimination.
The U.S. Court of Appeals for the 9th Circuit earlier had blocked provisions of the law that would authorize law enforcement officials to make an arrest without a warrant when an officer has “probable cause to believe . . . the person to be arrested has committed any public offense that makes the person removable from the United States.”
Chief Justice John Roberts has said the high court will not consider racial profiling during its examination of the law, but will focus primarily on states’ rights questions.
Because Justice Elena Kagan is sitting out the case, presumably because she worked on it when she was solicitor general, experts believe there is a chance the court will split evenly. Short of an outright rejection of the Arizona law, that outcome would be welcomed.
SCHOOL VOUCHERS: The Indiana Supreme Court laster this year will hear an appeal of a Marion County judge’s ruling that Indiana’s school voucher program is constitutional. Anyone with an ounce of understanding of the constitutionally-required separation of church and state should be aghast if justices support that decision.
Judge Michael Keele ruled in January the Choice Scholarship Program, which uses state tax dollars to pay tuition at private, often religious, elementary and high schools for families meeting certain income criteria, does not violate the Indiana Constitution’s prohibition on state support of religious institutions. The judge said the money paid by the state is supporting residents’ education and any benefits to religious institutions are “incidental.”
Approximately 4,000 students statewide had their private school tuition paid for by state tax dollars this school year, according to the suit. Many of those students attended religiously-affiliated schools. Tax dollars + religious instruction = unconstitutional. It should be just that simple.
AND IN ANOTHER COURT: While I am by no stretch of the imagination what you’d call a fan of Roger Clemens, the one-time baseball star currently on trial for lying to Congress during a 2008 hearing on the use of steroids and human growth hormones in Major League Baseball, a defense used this week in U.S. District Court by his attorney closely mirrors what I have believed since Day One of this debacle — that the U.S. Congress overstepped its authority in its determination that Clemens had lied to a congressional panel.
Prosecutors are attempting to establish that Congress was within its bounds in holding the hearing two months after Clemens was named in the 2007 Mitchell Report to the Commissioner of Baseball on drug use in the sport. The government has maintained it was important for Congress to learn whether the report was accurate, in part because of concerns about steroids and HGH as a public health issue.
Clemans’ attorney, Rusty Hardin, on that other hand has complained that the congressional hearing was ‘‘nothing more than a show trial.’’ Determining whether Clemens was telling the truth when he denied the report’s claims, he said, ‘‘is not a legitimate role for Congress.’’
When the Clemens’ hearing first took place, I suggested to a friend — an avid baseball fan who also happens to make his livelihood by engaging in politics at the highest level — that Congress was out of bounds on this one.
I think I remember learning in high school that there are three branches of government: executive, legislative and judicial. The duties of the legislative branch (Congress) include the ability to write and pass laws, declare war and to approve certain federal appointments. There are additional responsibilities, but determining the guilt or innocence of anyone seems to be beyond the constitutional scope of that particular branch of government.
Or, at least is should be.
The writer is the opinion page editor of the Decatur Daily Democrat.