Republican Convention 2008

Republicans Oppose Judicial Activism, Except When They Don't

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It's not exactly breaking news that the Republican Party platform (pdf) comes out against judicial activism, calling it "a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public." But the platform's lead example certainly leaves something to be desired. As the very next sentence begins: "We condemn the Supreme Court's disregard of homeowners' property rights in its Kelo decision."

There are many things wrong with the eminent domain abuse at the heart of Kelo v. City of New London (2005), but judicial activism is simply not one of them. In fact, Justice John Paul Stevens' majority opinion offers a great example of judicial restraint, with the Court deferring to the judgment of local authorities and refusing to enter the "political thicket" of local development fights. In theory, that's just the sort of restrained jurisprudence the GOP should be behind. But outside of Ron Paul, who's argued that "the fight against local eminent domain actions must take place at the local level," most Republicans seem unwilling to follow their own Supreme Court rhetoric to its logical conclusions.