Ed Whelan takes to the pages of the Los Angeles Times this morning to bash that Sunstein and Miles piece on judicial activism that I criticized here and here.

Ed’s most valuable contribution is to put the Sunstein and Miles piece in its proper context, noting that it is but a small volley in the war “to try to defuse the charge of liberal judicial activism” by advancing “shoddy” arguments that redefine “activism” to allow the charge to be leveled at conservative judges.

Ed notes that Sunstein and Miles’s analysis of agency actions has nothing to do with the real problem most Americans have with judicial activism: namely, the left’s use of the courts as the battleground in a culture war that should more appropriately be fought in the legislative arena. The public’s disappointment with judicial activism is a negative reaction to illegitimate court decisions that have “entrenched the left’s agenda on such issues as abortion, the death penalty, pornography, marriage, criminal rights and radical secularism.” This judicial power grab has undermined Americans’ efforts to advance their views on these issues by seeking passage of laws through the democratic process.

The invalidation of these laws by activist leftist judges has little in common with the reversal of bureaucratic agency actions discussed in Sunstein and Miles’s piece. Unlike legislators, bureaucrats are not directly accountable to the people. Moreover,

unlike a Supreme Court ruling that finds a federal or state law unconstitutional, a ruling that invalidates federal agency action as contrary to statute does not end the political processes. On the contrary, Congress is free to revise statutory law to permit or even require the same agency action. Further, in the frequent instances in which the agency has merely failed to follow proper procedures, the agency itself is free to redo its work and achieve the same result.

Having placed the argument in its proper context, Ed makes some points that I made in my previous posts. But Ed makes these points in a far more powerful and articulate fashion. For example, I argued that Sunstein and Miles’s piece is

another one of those pointless exercises that tries to measure “activism” and “partisanship” with studies that purport to be “objective” while ignoring the real issue: are judges deciding cases correctly?

Ed says:

Even on their own narrow administrative turf, Miles’ and Sunstein use a defective approach. They classify rulings as “restrained” or “activist” without regard to any qualitatitive assessment of whether the ruling is correct.

I also criticized the notion of classifying opposition to agency decisions under review as “partisan,” asking: “what if all the [agency] decisions [the courts] are looking at are really liberal?” Ed’s argument along these lines is classic Whelan:

[Sunstein and Miles] implicitly presume that the work product of federal bureaucrats is politically neutral. Only ivory-tower academics unfamiliar with, or blissfully inattentive to, the ways of Washington would make this presumption. If an agency shows a bias in a particular direction, a neutral judge’s decisions overruling that agency’s actions would of course show a pattern in the opposite direction. Thus, if federal agencies, captured by career bureaucrats, are prone to err in a liberal direction, the “Partisan Voting Award” that Miles and Sunstein would confer on Justice Thomas instead belongs to the agencies.

Very well said.

Ed makes several other excellent points in the piece, which you should read in its entirety.

Kudos to L.A. Times editors for giving Ed the space to do this effective rebuttal.