The Universal Notebook: All judges are activist judges

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In his March 23 decision in the Maine labor history mural case, U.S. District Court Judge John Woodcock concluded that Gov. Paul LePage was simply engaging in legal “government speech” when he ordered the mural removed from the Department of Labor waiting room sight unseen.

“The Governor’s message – whether verbal or in the form of the expressive act of removal – is government speech,” wrote Woodcock, explaining in the next paragraph that “the state, as a governmental entity, is entitled to say what it wishes and to select the views that it wants to express or does not want to express.”

The fact that LePage had never actually seen the labor mural before he banished it to a storage closet apparently means the governor doesn’t need to know what he’s talking about in order to exercise “government speech.” That’s a darn good thing, since LePage rarely seems to know what he’s talking about.

We must also conclude from Woodcock’s decision that “L’etat, c’est LePage.”

I don’t buy any of it. Woodcock is wrong. But then I saw it coming.

When the outcome of a court case is clear before it’s decided, either the case has no merit, the decision has no merit, or both. LePage spokeswoman Adrienne Bennett called the lawsuit “frivolous.” I’d say Woodcock’s decision is frivolous. It treats strong-arm suppression of art as though it were a matter of redecorating.

It was clear to me when I attended the hearing on the mural case last year in Bangor that Woodcock, a Republican appointee, would side with LePage, a Republican elect. His labor mural decision managed to take an obvious act of government censorship and turned it by judicial fiat into an act of government free speech.

Well, just because it may be legal doesn’t mean it’s right. Artists know censorship when they see it, even if jurists don’t.

When I hear conservative critics complaining about “activist judges,” mostly when it comes to matters of gay rights, I wonder why they don’t realize that all judges are activist judges. There seems to be a prevailing myth among strict constructionists and originalists on the right that the U.S. Constitution is an objective set of clear pronouncements that can only be understood one way.

The truth is that judges can construct arguments for and against any case. All court decisions are interpretations of the law and of the circumstances. Two different judges can come to two different conclusions. That’s why we have split decisions on the U.S. Supreme Court. And, increasingly, what we have on the U.S. Supreme Court are ideological decisions that are forgone conclusions. Bush v. Gore? Citizens United? Purely partisan political decisions unrelated to justice. U.S. Department of Health and Human Services v. State of Florida will be next.

Last week, I watched a few hours of the C-SPAN coverage of the Supreme Court oral arguments on Obamacare, which, since the Lords and Ladies in Black won’t let TV cameras into their hallowed courtroom, meant listening to the oral arguments and looking at still photographs of the speakers.

To hear the anti-Obamacare side tell it, the future of the Land of the Free hinges on whether citizens can be forced to buy health insurance or pay a compensating tax. Nonsense. It’s not about freedom. Remember these are the same folks who think it’s just fine for the government to force women to undergo trans-vaginal ultrasounds against their will. It’s about money and power.   

It didn’t take long to see that Chief Justice John Roberts and Associate Justices Antonin Scalia and Samuel Alito had already decided that the individual mandate was unconstitutional and that Associate Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor had already decided it was not. Associate Justice Anthony Kennedy was leaning toward the conservative old bulls and Associate Justice Stephen Breyer toward the more liberal ladies of the court. Associate Justice Clarence Thomas was apparently there, but since he never says anything during oral arguments he was never pictured.

Thomas pretty much goes along with whatever Scalia decides, so expect a 5-4 decision against Obamacare in June. It’s only a matter of whether the court just throws out the individual mandate or the whole historic health-care bill. Death to Obamacare is what capitalist tool tea partiers and conniving corporations want, so don’t be surprised if that’s what the Supreme Court delivers.

Whatever happened to learned judges with independent minds and judicial temperaments? All we seem to get these days are political appointees with pre-established agendas. Makes it hard to respect any court decision anymore.

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Freelance journalist Edgar Allen Beem lives in Yarmouth. The Universal Notebook is his personal, weekly look at the world around him.