Conservative Judicial Activism

Whether or not you agreed with New York City Mayor Michael Bloomberg’s big soda ban, Judge Milton Tingling’s is exactly what it appears: judicial activism.

popSlate’s Emily Bazelon writes:

What’s strange about all of this is the role the court is playing here. Conservative judges used to rail against liberal activists for striking down laws passed by the duly elected branches of government. The argument was that judges shouldn’t substitute their own values for the ones expressed by the legislature and the executive. Not without a very good reason, anyway, such as protecting the rights of a disempowered minority. When it comes to other sorts of laws like this one, which need only be justified by some reasonable basis, courts are generally supposed to let the democratic process play out. If the voters don’t like Bloomberg’s limit on sugar-drink sales, they can replace him with a mayor who will repeal it. (And in fact, Christine Quinn, Bloomberg’s own choice for his successor, opposes the order.) It’s true that the sugar-drinks partial ban would have thicker democratic roots if Bloomberg had gone to the city council for passage. But it doesn’t look like the city’s charter required him to do that—again, a matter for the voters to repair, if they don’t like the outcome.


That’s another law recently passed by duly elected officials—Congress—by a huge majority. And it’s also another law that may be flawed and incomplete, but hardly looks like it has no reasonable support at all. If you don’t like the Bloomberg approach to regulating high-calorie drinks, or obesity prevention in general, you may not care that it was a judge rather than an elected body of government who stopped the mayor. But remember that next time a judge invalidates a law you do support.

My position is that I usually prefer the government to set-up “recommendations,” so that people are armed with the pertinent information when they decide what they want to ingest.

As I said on last Sunday’s First Day show on WSGW, one of the unintended consequences of this ban is it will harm the environment ever more than now.  If people want more soda, then they have to purchase two smaller bottles of Coke or Pepsi–plastic bottles that will just sit and rot in a landfill, thereby further damaging our already fragile environment.

However, the voters do have a say in the end.  If they hate the ban, they have many resources at their disposal to reverse the ban.  Bloomberg is an elected official, who is soon to be out of office.  The new mayor can get rid of the ban.

That being said, it’s obvious this conservative judge utilized the very thing liberal judges are accused of: judicial activism.

To say that Bloomberg (and the health department’s) decision had no “reasonable basis,” is asinine.  Even if we agree that the rule was sloppy, is it a stretch to claim that fighting obesity isnt a “reasonable” goal?

I remember hearing or reading Rush Limbaugh once say that when liberals lose in the voting booth, they turn to liberal judicial activists to win their battles.

Isn’t Judge Tingling guilty of the same thing?



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