If you had any doubt that Republican objections to judicial activism would melt away if conservative judges gained the upper hand, Supreme Court Justice Samuel Alito and some of the judges on the U.S. Court of Appeals for the Fifth Circuit, in Texas, should put it to rest.
The two relevant data points are the leaked draft of an opinion by Alito that would overturn the 1973 abortion-rights precedent Roe v. Wade and a Fifth Circuit decision this week challenging the authority of the Securities and Exchange Commission. We don’t know yet what the final result of the abortion case will be, and the SEC case is for now just the work of two mid-level judges. But Alito reportedly has the majority of the court, and it’s likely that the Fifth Circuit decision will prevail, too, in some form or another.
What both of these decisions tell us is that Republican judges — at least some of them, and probably most of them — intend to use their positions aggressively, regardless of popular opinion, the electoral context or anything else. They hold office, and they intend to strike down laws and practices they disagree with.
