What constitutes judicial activism depends on where you're standing. As President Barack Obama noted in his caution to the U.S. Supreme Court, if the five conservative justices strike down part or all of the Affordable Care Act they will be abandoning judicial restraint and substituting their judgment for that of a "strong majority of a democratically elected Congress." That's just what the political right criticizes liberal judges for doing.
But conservative judicial activism is nothing new. It has a long, ignoble history dating from the early 19th century when the court stood in defense of property interests over progressive reforms. In the famed case where slave Dred Scott sued for his freedom, the high court ruled that the Missouri Compromise that restricted slavery in certain territories was an unconstitutional overreach by Congress because it interfered with the rights of slave owners to their property.
The stark contrast between liberal and conservative "activists," if one must use that phrase, is that ground-breaking liberal decisions typically stand for expanding notions of social fairness and civil rights and liberties, while conservatives more often use judicial power to protect wealth, power and authority. Or they pick a president. See Bush vs. Gore.
Imagine this country without liberals on the court affirming the constitutionality of Social Security and laws protecting workers from exploitation. The Warren court of the 1950s and '60s, often described as the most liberal and "activist" in history, ruled that blacks and whites had the right to marry regardless of state antimiscegenation laws. It concluded that poor people accused of a crime had the right to state-paid counsel, and it recognized the right to privacy, striking down laws barring access to birth control.
This liberalism has literally defined America as a beacon of hope for the oppressed. It arose from the ashes of the Lochner-era court, the now-disgraced protector of capitalist prerogatives from the turn of the 20th century to 1937. Channeling its best Simon Legree, the high court set aside dozens of reform laws, particularly those responding to the degrading work conditions of the time. The justices saw themselves as defenders of economic liberties and property rights, no matter the brutalities they wrought.
The premier example is a 1918 decision on child labor laws where the court set back for decades Congress' attempt to protect children from the ravages of industrial work. Andrew Koppelman, professor of law and political science at Northwestern University, makes a strong case in the New Republic online that Hammer vs. Dagenhart closely parallels the current challenge to the health care law, in that social progress was stymied by the court's rigid conservative ideologues.
Much like universalizing health care, limiting child labor was the culmination of generations of reformers' efforts. Congress used its express Commerce Clause powers to ban the interstate shipment of products made by children. But the court struck down the law, Koppelman writes, "in tones reminiscent of the Broccoli Objection to Obamacare."
The court wrote that if it let the law stand, "all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed."
Never before had the court invalidated Congress' authority to control what crossed state lines. The court had to literally invent a reason to do so, Koppelman says, claiming the products of child labor couldn't be federally regulated because they "are of themselves harmless."
This case was overturned in 1941, resulting in children going to school rather than toiling 12 hours a day at a textile mill, and yet somehow, despite the court's dire predictions, commerce persevered. Upholding the health reform law won't lead to people being forced to buy broccoli. But potentially, without the law's protections, millions of Americans will go without adequate health care or be bankrupted by medical bills.
The Roberts court's four liberals will stand with Congress' well-established power to regulate a market that constitutes 17 percent of the economy. How activist the five conservatives intend to be to defeat America's latest progressive social reform remains to be seen.