Matt Y notes here and here the unlikelihood that conservatives will howl over some recent judicial activism.
It got me thinking whether or not I support judicial activism (indeed if I even know what the term means).
Judicial activism is, as I define it, judicial review yielding a law (or an interpretation of a law) that is not expressly articulated in the Constitution.
The Supreme Court is sometimes derided as quasi-philosopher kings who sit in judgment, making decisions based on their unique experiences that are sometimes out-of-step with popular opinion.
At the same time, The Supreme Court is sometimes lauded as quasi-philosopher kings who
sit in judgment, making decisions based on their unique experiences
that are sometimes out-of-step with popular opinion.
The benefit of judicial activism is that it can sometimes bypass the
tyranny of the majority and mandate something that is manifestly
"right" (see: Brown v. Board). The drawback is that the court can sometimes do things that are manifestly fucked-up (see: Dred Scott, Plessy v. Ferguson, Bush v. Gore).
I have read (in a number of places) that one of the (many) complaints against Roe v. Wade is that it bypasses legislative/constitutional action and "hides" abortion as a privacy issue. Pro-life advocates maintain (perhaps dishonestly) that they would less-opposed to abortion so long as it was determined on a state-by-state basis.
I disagree with this opinion as I think it would unfairly penalize poor women who want abortions in, say, Alabama.
So I advocate judicial activism!
But wait, I disagree with the activism
demonstrated in the DC handgun ban. In that instance a community,
through legislation, decided the best way to govern itself on a
particular issue.
The Supreme Court thought otherwise.
So I'm opposed to judicial activism!
So that's where I stand on the issue: I have no idea.
Last Sunday on Charlie Rose,
Justice Scalia said that the death penalty was clearly not a violation
of the 8th Amendment because when the Constitution was drafted, the
death penalty wasn't cruel and unusual.
He stated that if through
legislative action, the death penalty was outlawed then so be it, but
until that time the DP complies with Constitutional law.
I think Scalia is hiding behind his rigid interpretation of judicial review.
The rapid evolution of crime-scene evaluation (DNA testing) demands a moratorium be placed on the death penalty; many (most? all?) politicians lack the courage to advance this moratorium.
The lifetime appointees on the court are not subject to political winds and should institute such a moratorium.
But that's just one case that I favor activism, I'll disagree with the next one.
A poor justice would I make...
