Monday, November 07, 2005

Rybar and activism

I tossed off a quick comment yesterday about Alito's "judicial activism" (a phrase I find generally stupid, but I'm using it as it's been used in the culture).

A commenter expressed skepticism, and in answering the question, I came across this line which wasn't in the ThinkProgress collection of judicial responses to Alito's dissents. From Rybar (where Alito said the government couldn't regulate machine gun ownership), and couldn't regulate sales without a "jurisdictional element" clarifying that the gun traveled across state lines:

We know of no authority to support such a demand on Congress. While [Judge Alito] writes in the name of "constitutional federalism," [he] recognizes that even Lopez abjures such a requirement, but overlooks that making such a demand of Congress or the Executive runs counter to the deference that the judiciary owes to its two coordinate branches of government, a basic tenet of the constitutional separation of powers. Nothing in Lopez requires either Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute.
Critics of the judiciary love to complain when judges take it upon themselves to seize power properly granted to the legislative or executive branch, except, I suppose, when that judge might be the 5th vote against Roe v. Wade.