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What exactly is “judicial activism” anyway? Contextually speaking, it’s a rhetorical catch phrase used by the political right to counter years of judicial precedence. The phrase picked up great momentum during the Bush and Cheney years and, today, Republicans use it when referencing high court nominees who, they claim, may or may not “legislate from the bench.” Behind closed doors, though, operatives within the party use it as a tool to foster change for their base, which sets in motion a concept that conservative court appointees will ignore traditional objectivism and actively seek to reverse ill-favored decisions made in the past. These cases, which set precedence spanning the history of the United States, embody a slew of rulings that touch on issues of civil rights, church and state, gun control, corporate litigation, states rights, right-to-privacy, and abortion.

Washington insiders confined within the rarely seen, but often heard, chambers of political think tanks conjure ways to package complex political concepts into compact, succinct, and portable rhetorical gems like “judicial activism,” which trickles down from the higher ranks of the party, in talking-point fashion, to its outer regions via the mainstream media. Anyone who played the game “telephone” as a child knows that messages usually encounter static as they travel from one person to the next, finally losing their luster and becoming freakish giants of little meaning or substance by the time they reach their intended target. Still, base underlings propagate these loaded words into social settings and family gatherings throughout the country, often inverting their meaning by denying or reinterpreting historical fact, as they relay personal problems in the context of government intervention.

While discussing the Supreme Court confirmation hearings of Sonia Sotomayor, I recently had an encounter with a person who withheld support for the judge, fearing that Sotomayor might uphold abortion “law” if confirmed. Of course, the government never passed a law making abortion legal, and it actually passed laws to ban the practice instead. However, Roe v. Wade’s significance is that the case interpreted those laws barring abortion to be unconstitutional. Still, regardless of the case’s historical context, most conservative Republicans seem to agree that the case allowed women a private right to choose if they wanted to have an abortion. In this context, the term “judicial activism” simply implies that judges have been wrongly upholding that decision since 1973. It could be more accurately argued, though, that judges have actually been rightly using Roe v. Wade as precedence to guide future decisions.

In Sotomayor’s confirmation hearings, the judge explained that the federal court system is constitutionally bound to follow the policy of “stare decisis,” which determines that court decisions must stand by precedent, or acts, decisions, and cases that serve as guides for subsequent situations. Landmark cases like Roe v. Wade serve as precedent for future cases that come before the Supreme Court, and logic dictates that the longer each precedent stands, the more difficult the burden will be on the court to find just cause for reversing it. In fact, this is extremely difficult to do since lawsuits that seek to reverse decisions, which previously set precedence, need to challenge the illegality or unconstitutional merit of laws already determined to be unconstitutional. Ultimately, precedence sets a very high standard that federal judges must use and, contrary to political rhetoric coming from the right, acts that covertly seek to reverse it should be more regarded as attempts to “legislate from the bench” than acts seeking to uphold it.