Upon Further Review
During the confirmation battle over Supreme Court Justice Sonia Sotomayor, I wrote about the inevitability that Republican opposition to her nomination would center on the concept of judicial activism. This is the criticism that judges use court rulings to interject themselves into the legislative process, and it has become a well-worn avenue of attack in the bitter partisan battles that typically rage around confirmation to the federal bench. In the case of Sotomayor, Republicans argued that as a Supreme Court Justice, she would legislate from the bench, in order to balance court outcomes in ways that consistently favor the policy agenda of the Democrats who appointed her.
With that particular confirmation battle over, I hadn’t thought much about this recently, until I saw this item suggesting that Republicans may increasingly turn to the courts, where they have an advantage in numbers, in order to roll back the Obama agenda in areas like health care. In essence, they would be filing lawsuits looking for some conservative activism from the bench to balance President Obama’s legislative advantage. Putting irony aside for the moment, if this strategy plays out, it could make for an interesting second (legal) act to the remarkable legislative drama we’ve witnessed over the past year.

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