Neither of which counter anything I said.
But let’s focus on the positive. We agree that the outcome of this ruling was well within the power of the court and is in no way “judicial activism”.
Yes.
That’s exactly what’s meant by “We, The People,” having the sovereign power.
It’s not “We, The People (If They Agree With Me).”
It is “We, The People (If enough of them Agree With Me).”
I recall earlier in this thread, Bricker made mention of the Lochner case. As I recall, neither you nor anyone else bothered to take up his offer to discuss “judicial activism” when it was not directed towards the goals you consider important. You really should study the “Lochner” era of the Supreme Court. To this day, it gives the phrase “substantive due process” such a bad name that, despite the fact that’s exactly what the Court is applying in modern 14th Amendment cases regarding fundamental rights, the Court does everything it can to avoid acknowledging this.
And it’s not a stretch to think that we could have had a similar period of “conservative” judicial activism much more recently. Imagine what the Court would have been like if Robert Bork would have been confirmed. Anthony Kennedy is much more centrist than Judge Bork is likely to have been. Imagine Roe v. Wade overturned. Imagine Miranda scrapped. Imagine if most of the decisions of the 50s and 60s and 70s which acted to expand what you call civil rights, or “fairness and justice” had been removed. It didn’t happen, but only because Justice O’Connor and Justice Kennedy didn’t believe in judicial activism to achieve goals they were personally sympathetic with.
In my study of the Court and its decisions, I have often found myself in disagreement with fringe justices at either end. I dislike the opinions of Justice Thomas in large measure because I consider him horribly result-oriented in his judicial thinking. But I also dislike the opinions of the famous Brennan-Marshall, JJ., in dissent monster, for exactly the same reason. I will always prefer a Court decision that accomplishes an important goal through a process that does not simply come up with some fig leaf of judicial thinking to cover up the fact that the end result was always to goal, and the rationale used didn’t really matter. If that means that sometimes you cannot quite get where you might want to go, so be it. There ARE other ways to accomplish change in society besides coercing it through judicial fiat. We used to be much better about that.
And no one here is disparaging you for advocating that judges rule expansively. Certainly I am not, nor as I read it is Bricker. What we both are saying is that expansion (or contraction!) has to come via sound judicial analysis. This is a big reason that I believe it’s much better to attack anti-homosexuality efforts through already existing gender discrimination mechanisms, than to suddenly decide that homosexuals deserve just as much protection in our society as the descendants of our former slaves, for whom protections were explicitly enshrined in the Constitution via the 13th, 14th and 15th Amendments. That’s why I like the decision in the case being considered in this thread. (There are other reasons as well, such as the difference in considering Title VII law vs. considering 14th Amendment jurisprudence, but that’s for another day).
Yes!
Yes. Now, what do you imagine “enough” to be?
Yes – and indeed through principled analysis. It’s incumbent for judges to be able to articulate the specific analytical method they will use to construe the law, and then hew to that even when it delivers a result they don’t personally favor.
Well, kinda depends, doesn’t it? It appears that one candidate getting more votes than another is not it. Like, three million. It appears that a political party in power can install voting procedures as are most likely to ensure they remain so. I am told that them’s the rules, and that’s just how it is. Of course, I know that, and that is what I, and many others, are bitching about.
So, the answer to your question, how many is enough? A majority so utterly massive that the creative minds of the Forces of Darkness cannot come up with a plausible denial, so massive that they would be too embarrassed to try.
50% +1, if we are talking strictly laws.
The curious thing about that number, is that it is also exactly the number that is needed to confirm judges.
66.666666%+1 if we are talking amendments.
I guess I am not sure why judicial activism is such a big deal. It really is just the stuff that you, in your (and the royal you applies) opinion disagree with. It is the stuff that you do not think is a reasonable interpretation of the law. Sometimes this is colored by ideology, sometimes by politics, sometimes by the personality of the judges themselves. It is obvious that they thought it wa a reasonable interpretation, and the fact that you can nearly always find perfectly qualified jurists both on the court and off of it that will agree or disagree with any given ruling means that it’s not just judges making up law out of whole cloth.
If the SCOTUS came down with a ruling that had absolutely no precedent, and had no justification, and all the serious legal scholars were left scratching their heads, saying “Where did that come from”, then that would be judicial activism. But as long as it is just a disagreement about how to apply the laws and constitution to the society in which we live, then the political process of selecting justices that will give us the best outcomes, (in our opinion) is absolutly following the rule of law.
If we don’t like the outcomes of judicial decisions, we can impress upon our elected representatives to re-write the law to be less ambiguous (for instance, you could re-write chapter VII to add the words “This does not apply to homosexuals, discrimination against them is fine”, and then the intent would be clear. ), you could impress upon them to only confirm judges that will make judgments that you prefer, or you can elect entirely new congress people, who will do these things if your current crop won’t.
You complain much that the judges are not elected, in Ohio, we elect our judges. Would you be more inclined to give a judge leeway if they were elected, and had terms of office, and therefore were responsible to the voters?