Law Dean’s Book Takes Aim at Bush v. Gore—But Not Because of ‘Activism’
The founding dean of the University of California, Irvine’s law school has a beef with Bush v. Gore—but it’s not the familiar criticism that the case is an example of an activist U.S. Supreme Court deciding an election.
In his book, The Conservative Assault on the Constitution, law dean Erwin Chemerinsky says the problem with the case was the result, the Los Angeles Times reports in a review of the book. Activism wasn’t the problem. “To the contrary,” the book review says, “Chemerinsky believes that our political conversation’s false choice between judicial activism and neutral or ‘strict construction’ judging has obscured the Supreme Court’s authoritarian drift.”
The Constitution requires interpretation, Chemerinsky says, and interpretation is necessarily activist.
“The difference between liberals and conservatives,” Chemerinsky writes in the book, “is not in their willingness to overrule precedent or in their degree of deference to popularly elected officials or to make momentous decisions affecting society. The divergence is entirely about when they want the court to do this and for what purpose. The other difference is in their rhetoric; conservatives continue to rail against judicial activism and profess judicial restraint even though they are every bit as willing to be activist as liberals.”