I’m not so much worried about them deciding that there is no right to an abortion as I am worried that they will find a right to life possessed by embryos and fetuses that would make abortion illegal throughout the land.
IMHO, most people who complain about judicial activism aren’t so much complaining about the courts usurping the legislative power so much as they are complaining that it isn’t their side that’s getting to do it.
Sure, there are some principled people on the left and right who think the courts should play the role of referees only, calling balls and strikes. But more often than not, when I saw Republicans and conservatives complaining about liberal judicial activism, these were people who would have been absolutely thrilled if the courts had forcefully played judicial-activist for the causes they supported. They would have been delighted by a forceful SCOTUS blanket ban on all abortion nationwide, for instance, or a SCOTUS that acted as a rubber stamp for Trump.
Not even Scalia, Thomas, White or Rehnquist ever said such a thing. Not Gorsuch, Alito, Roberts, Kavanaugh, Bork or Barrett. What they said was that as the Constitution is silent on the issue of abortion that it is a matter to be left to the legislatures of each state. Such an argument is a strawman that nobody with any sort of reputation has serious advocated for.
ETA: And we don’t even know about Gorsuch, Alito, Roberts, Kavanaugh or Barrett.
I guess we need some definitions then. Either Bush v. Gore was correct and was not judicial activism, or incorrect and was, or was a good faith decision that was decided on a legal basis, but just in someone’s opinion incorrect. Likewise with Roe and Casey.
Both sides can’t be guilty of judicial activism on each side of a case. There has to be a legally correct outcome.
I am certainly alarmed at the direction the Supreme Court has taken, but I don’t blame that on the institution of the Court. The problem is the US Senate that appoints the judges. The Senate should either be abolished outright, or get a massive overhaul, beginning with proportional representation similar to the House.
It’s foolishness for every state to have 2 Senators, it should be proportional to population, and their terms should be reduced from 6 to 4 years (no term limits, those are stupid). This is where the real undemocratic abuse of power is happening, and that’s why the Court is becoming an ideological rubber stamp.
Fair enough, but you also stated that you believed that if the Court found that there was not a right to an abortion, that would be judicial activism. Others would say that finding such a right was judicial activism. What do we mean by judicial activism?
I have my own beliefs on these cases but I don’t want to blow up your thread making it about them. What is judicial activism in your opinion?
No disagreement there. But what is a judge to do when the legislature and the executive make a law which, hopefully to use a dead argument, makes same sex marriage illegal? Then a gay couple files a petition asking the judge to hold that law unconstitutional.
The judge then must hold, one way or another, whether that law is constitutional. Which way is judicial activism?
Also, you have your garden variety cases where the legislature and the executive “make laws” which have ambiguous terms, or a comma placed or not placed there, and these can be on the most mundane of topics. Is it judicial activism if a judge favors one interpretation over the other?
This is always the gotcha for the conservative/textualist/originalist judge. And I will concede that it is a very fair point, even though Scalia et al. hand waive it away with a pretty poor argument, IMHO.
While agree with the result of Brown V Board of Education, it was Judicial Activism. The better, and by that i mean more democratic solution, would be for democratically elected Legislature and Executive to enact those laws.