Conservative Judicial Activism

Following up on yesterday's post on The New York Times' editorial about an aggressive Supreme Court conservative majority, Paul Gewirtz, in an op-ed for the newspaper, notes another way to measure the conservative faction's aggressive nature.

Gewirtz, a Yale Law School professor, writes that another leading indicator of the Roberts Court's "activism" can be seen in its heavy-handed "policing and overturning district court judges who ordinarily would have much more leeway - particularly when those judges had used that leeway in a liberal direction."

Gewirtz writes:

In January, for example, the court took the unusual step of granting an emergency stay to stop a district court in California from televising a civil trial over the constitutionality of the state's Proposition 8, which prohibits same-sex marriage.

The district court had allowed the trial to be televised as part of a pilot program. But a 5-4 majority held that the district court hadn't allowed enough public comment before making its decision - despite the dissenters' argument that they could not find a single prior ‘instance in which this court has pre-emptively sought to micromanage district court proceedings as it does today.

In April, an identical 5-4 majority overturned a district court's award of fees to a group of civil rights lawyers who had won a case that transformed Georgia's foster care system, even though the Supreme Court acknowledged that district courts usually have the power to grant such enhanced fees, and that the award turned on the district court's fact-intensive and on-site judgment.

...

By wading into realms where the district courts traditionally have leeway, the Supreme Court majority undoubtedly believes it is correcting lower-court mistakes. But appellate courts usually give district courts flexibility and review trial court decisions only for significant legal errors.