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Discussion in 'Politics, Religion, Social Issues' started by zimv20, Nov 23, 2005.
I wanna know who the 9% are who think Bush is making the Supreme Court too liberal, so we can remove them from the gene pool.
Who openly supports Bush? Even the few people I knew that rabidly supported him several months ago have since become rather silent.
I know someone that still thinks this country is in great shape and thinks we are doing a good job in Iraq...
Sheesh, no kidding. Maybe Bush could nominate the ghost of Hitler next.
Now, now...everybody is entitled to their views.
And while Roberts and Alito are a bit farther right than I hoped for, I suspect time will prove them to be fair.
what's "fair?" Does scalia qualify?
I believe a "fair" court is one that doesn't engage in judicial activism, which I think is probably one of the biggest threats to our freedom today (even if you believe the decision was the right one). Judicial activism = tyranny, and nowhere is this more apparent than the 9th circuit, which I believe to be exceptionally unfair.
Does Scalia qualify as fair? Probably. He thinks it was inappropriate for the court to hear Roe v. Wade, which was a matter best decided by state legislatures, and that certainly sounds fair to me, especially with such a contentious issue.
I would contend that this idea of "judicial activism" is simply a concept invented by those who do not like the judiciary asserting its Constituional role when they disagree with a ruling that enforces the Constitution.
Certainly. But you have to wonder, if George Bush's picks are too liberal for these folks, if they are either (1) completely not paying attention, or (2) hoping for a fascistic and/or theocratic state.
Likewise agreed. I've yet to hear any other functional definition of judicial activism. Certainly the most conservative justices on the Court, who proudly call themselves "strict constitutionalists," have no qualms about overruling Congress or the states when it suits their ideological bent.
Would you say that 'judicial activism' would be best described by the number of times a particular justice votes to overturn a law enacted by a vote of a majority of Congress? (aka the will of the people)
There was nothing "unfair" about hearing Roe v. Wade. Texas completely outlawed abortion, which regardless of how you feel about abortion, instituting a complete ban is not appropriate. I don't think a state has a compelling enough interest in fetal life to not allow a pregnant woman to seek an abortion when she has serious complications. The Court did not have to decide the case as broadly as it did. It could have simply ruled Texas's statute unconstitutional and left it to states to come up with better legislation, which I'm assuming you would have been in favor of. I think we would have ended up in same place though, as the Court then would have had to hear the cases that followed and still likely would have found a woman's liberty interest to outweigh the interest in protecting fetus's in a pre-viability stage. Either way though, hearing Roe v. Wade wasn't unfair, it was necessary.
Would you say it's judicial activism to side with the majority when they hold that allowing individuals to consume homegrown marijuana for medical use, pursuant to a valid state law, is unconstitutional because of its effect on interstate commerce? If judicial activism is not deferring to the legislature, as you seem to be saying it is, then it seems like this would be a text book example. Scalia sided with the majority in this case, not because he likes to overrule state actions under the Commerce Clause, but because he doesn't like the thought of people smoking marijuana, IMO. You'd be hard-pressed to find another case in which Scalia overruled a state law under the commerce clause where the connection to commerce is this attenuated. I would say that not only is Scalia one of the most inconsistent justices, he might also be the most "unfair".
And what exactly is tyrannical about what you refer to as judicial activism? The judicial branch's duty is to interpret the Constitution. A basic purpose of the Constitution is to safeguard individuals from the tyranny of the majority. Some people might call it anti-democratic, but to call any level of judicial review tyrannical makes no sense.
Lastly, what is one example of the 9th circuit being unfair. I bet I could guess what your first response might be, and I would completely disagree with you. The point is that what you think is judicial activism or "unfair" is no more than a reflection of your personal views. Much like Scalia's devotion to originalism is a cloak that he hides behind while making political decisions from the bench.
A strict constructionist court refusing to hear a case can be just as "activist" as if they'd ruled very liberally on something.
Ahem, if you choose not to decide, you still have made a choice.
"Activism" is just a meaningless "dirty" word (like "liberal") that conservatives have coined to frame a debate without having to resort to substantial arguments.
absolutely. as pointed out, if the purpose of the courts is to merely do what the legislators want, then the courts serve no real purpose.
their real purpose is to examine new laws and see if they fit in with the body of existing laws. if the new laws do not, then cases are overturned.
and if the neocons don't like that decision, then they declare judicial activism. if they do like it, then they nod their heads and say the correct thing was done.
That could be one measure, yes.
You're exactly correct. And this was precisely the reason why Scalia believed it wasn't in our society's best interest for the Court to decide the issue, because he believed it only natural that less "fair" justices would have arrived at the decision that wasn't asked for. The decision allowed states to legislate restrictions against abortion past the first trimester, but not during the first. This decision went beyond the spirit of the case brought upon it, which I would argue was to resolve the issue concerning the Texas anti-abortion law within extreme circumstances (beyond medical concerns, i.e. rape). Of course we now know that isn't entirely true, and it seems to me that everybody directly involved had some ulterior motive. This craziness is further demonstrated by many efforts since then to place sensible restrictions on abortions, only to be struck down. It seems to me that the court should have decided the case more narrowly, or not at all, and allowed a genuine grass-roots effort by the people to fully legalize abortion.
Firstly, that California state law isn't valid. Marijuana is a Schedule 1 controlled substance, which makes this example very different.
On its face, yes it sounds like judicial activism. And not because it's a failure to defer to the legislature, but rather it's a perversion of interstate commerce law. But, would you really expect Scalia to hold a dissenting opinion, which would entail upholding a state law that is at odds with federal law in place since 1970? That sounds like an even more severe case of Judicial Activism to me.
What would be your guess?
Ah, so what you're saying is, the most liberal members of the Court are the least activist, and the "strict constructionists" are the most activist?
Could this be true? Has day really turned into night?
No, because they're striking down liberal laws. Only striking down conservative law makes you an activist.
It would seem by the numbers mactastic posted. But then again, there's more to it than simply how many laws a particular justice overturned.
In this case, not much. The strict constructionists advertise a belief in deferring to elected representatives -- which they seem to do mainly when the elected representatives are passing conservative laws.
That the decision was too broad is one argument to be made, and it is a valid one, but that doesn't mean the Court didn't have a valid reason to decide it as it did. Leaving it to the political process may have worked out better, and it may not have. That doesn't mean the Court shouldn't have decided Roe as it did, it's just an argument. I agree with the outcome of Roe and while I would appreciate the legitimacy the political process could have provided to what the Roe decision established (to shut up some of the "pro-lifers"), I think the right established by Roe is an important constitutional right. It's the Court's job to interpret the Constitution, and I think they did the right thing with Roe.
I am not aware of too many cases which have involved reasonable attempts to restrict abortion. I'm know there have been a few post-Roe cases, but I wouldn't consider the restrictions reasonable.
The state law was valid as an act of the state legislature. It was struck down under the Commerce Clause because the Court found that Congress could have rationally concluded that leaving locally grown and home consumed medical marijuana outside of federal control could effect price and market conditions. The question was whether the categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes, exceeded Congress's commerce authority. You would think that due to the extremely attenuated connections to interstate commerce, Scalia would have stuck to his federalist guns. The fact that he switched sides here after the recent progress the federalists on the Court had made, tells me that he would rather stop a few people from smoking weed, than defer to the CA legislature. I like this decision, because it chipped away at the progress the federalists on the Court had been making in narrowing the scope of the commerce power, but I think it is telling that Scalia concurred. I don't think a "fair" justice would switch sides like that.
Newdow would be my first guess, of course. Your smiley face makes me feel that I might be wrong.