# Judicial activism and conservative judges **URL:** \ **Category:** Great Debates\ **Created:** [November 1, 2005, 1:34am UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835 "2005-11-01T01:34:23Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 1, 2005, 8:37pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/61 "2005-11-01T20:37:43Z")
> [@Bricker](#): > > If that were so, how is it that _Lawrence v. Texas_ exists? The issue was settled in _Bowers_. Activist judges 😉 Seriously, a different issue was decided in _Bowers_ - whether sodomy could be criminalized. The real issue in _Lawrence_ was whether a particular type of sodomy - homosexual sodomy - could be criminalized, while heterosexual sodomy would be legal. Had the Supremes stuck to that issue, they still could have overturned the law and not violated _stare decisis_. IMO, the same result would have been obtained - I doubt the Texas legislature could have come back and criminalized heterosexual sodomy. But the Supremes decided to breach _stare decisis_ and go beyond what was necessary. An activist decision. Of course, now that it has been decided, even if wrongly IMO, my position is that it is _stare decisis_ and should not be overturned by a later court, unless there is a truly compelling basis. Sua ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 8:41pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/62 "2005-11-01T20:41:29Z")
> [@SuaSponte](#): > > Activist judges 😉 > > Seriously, a different issue was decided in _Bowers_ - whether sodomy could be criminalized. The real issue in _Lawrence_ was whether a particular type of sodomy - homosexual sodomy - could be criminalized, while heterosexual sodomy would be legal. > Had the Supremes stuck to that issue, they still could have overturned the law and not violated _stare decisis_. IMO, the same result would have been obtained - I doubt the Texas legislature could have come back and criminalized heterosexual sodomy. But the Supremes decided to breach _stare decisis_ and go beyond what was necessary. An activist decision. > > Of course, now that it has been decided, even if wrongly IMO, my position is that it is _stare decisis_ and should not be overturned by a later court, unless there is a truly compelling basis. > > Sua Right. So how is _stare decisis_ an effective limit on the power of the judiciary? You’ve just acknowledged it didn’t stop the judiciary at all. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [November 1, 2005, 8:41pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/63 "2005-11-01T20:41:34Z")
> [@Bricker](#): > > You know what? > > Try one more time. I will focus on your answer and do my best to understand it. > > What, precisely, are the limits on the judiciary’s power if I accept your view of how judges may interpret the Constitution? > > The only pre-emptive strike I’ll make is this one: please do NOT suggest that the judiciary’s own wisdom, limiting itself for the good of the country, should be considered a “limit”. > > Apart from that, I’m all ears. And eyes. Amendments, impeachment, lack of enforcement powers and yes judicial wisdom. Not to mention that these judges are appointed by elected officials and continued by other elected officials. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [November 1, 2005, 8:45pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/64 "2005-11-01T20:45:22Z")
> [@DSYoungEsq](#): > > …without allowing the justices some sort of essentially unfettered power they’ve never abrogated to themselves anyway. 😉 Hmmm. Perhaps you could point to the text of the Constitution that gives the Supremes the power to determine the constitutionality of laws passed by Congress? Or was that power “abrogated”? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 1, 2005, 8:47pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/65 "2005-11-01T20:47:46Z")
> [@DSYoungEsq](#): > > But it wasn’t the United States that wanted to ban abortions, it was one particular state, a sovereign political entity, and the will of that entity was thwarted by justices who weren’t apointed by the polity, can’t be removed by the polity, and whose results can’t be negated by the polity in question. Tough cookies for 'em, then. Maybe Utah needs to learn about the Civil War? Since then, we have a single country with a single set of federal laws which do supersede any state laws to the contrary, as you know too. If Utah has a compelling argument, then it shouldn’t be too hard for them to convince the majority of the rest of the country to elect Congresspersons to act that way, and to ratify the amendment against a “rogue” Court. If they can’t do that, then their case must not be all that compelling and most likely shouldn’t prevail anyway. Eighth-grade Civics class stuff, that ol’ checks ‘n’ balances system. A lovely thing it is, one of the sources of our government’s strength, even if it isn’t fully defined in the Constitution. Why **Bricker** is arguing as if it didn’t exist is puzzling. > [@](#): > > The proper, indeed, the ONLY legitimate response to those who decry “judicial activism” is to assert, quite simply, that words can be both liberally and conservatively interpreted, and neither is an _inherently_ correct way of proceeding. We finally agree on something. Well done. 🙂 [/QUOTE] ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 1, 2005, 8:49pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/66 "2005-11-01T20:49:54Z")
> [@Bricker](#): > > Right. So how is _stare decisis_ an effective limit on the power of the judiciary? You’ve just acknowledged it didn’t stop the judiciary at all. I’m sorry, I didn’t make myself clear in my earlier post (#55). _Stare decisis_ would be an effective limit on the power of the judiciary _if judges adhered to it_. They sometimes don’t, and so sometimes it is not an effective limit. But that doesn’t invalidate my point. The problem with your argument is that it has the same weakness - strict adherence to the text of the Constitution would be an effective limit on the power of the judiciary _if judges adhered to it_. But there is no way in our system to **make** judges adhere to either _stare decisis_ or textualism. Barring a complete rewrite of the Constitution to put actual limits on judicial power, the only limit is the fact that the courts don’t have an army to enforce their decisions. That has always been my problem with your argument. An underlying assumption is that, if judge **promise** to adhere strictly to the text of the Constitution, that is an actual limit to their power. It’s not. Actual limits are rules that say judges cannot do something, not promises that they will not do something. And absent any such actual limits to their power, getting nominees to promise to adhere to _stare decisis_ would be as effective, and IMO just as proper, as getting judges to promise to adhere to textualism. Sua ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 8:54pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/67 "2005-11-01T20:54:08Z")
> [@treis](#): > > Amendments, impeachment, lack of enforcement powers and yes judicial wisdom. Not to mention that these judges are appointed by elected officials and continued by other elected officials. Amendments - if the text of an existing constitutional provision is clearly opposite a judge’s ruling, why is an amendment a check on the power? The Constitution gives Congress power over interstate commerce, and says that if a power is not listed, the federal government doesn’t have it. Congress tries to exercise power of home-grown and home-consumed wheat, and the Court says it can, because even home-grown and home-consumed wheat affects interstate commerce. Under that interpretation, what possible item or trade DOESN’T affect interstate commerce? And how would an amendment help? “Amendment 28: We REALLY, REALLY meant it, about the interstate commerce thing.” Impeachment - yes. I grant that this is a check on the power of the judiciary. It requires the assent of a majority of the House and the Senate. Lack of enforcement powers - how so? We are a nation of laws. Judicial wisdom - look, stop saying this. It’s not a limit on your powers if it’s merely something you impose yourself. The very raising of the question suggests that the exercise of judicial wisdom has failed. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 8:56pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/68 "2005-11-01T20:56:34Z")
> [@SuaSponte](#): > > I’m sorry, I didn’t make myself clear in my earlier post (#55). _Stare decisis_ would be an effective limit on the power of the judiciary _if judges adhered to it_. > They sometimes don’t, and so sometimes it is not an effective limit. > But that doesn’t invalidate my point. The problem with your argument is that it has the same weakness - strict adherence to the text of the Constitution would be an effective limit on the power of the judiciary _if judges adhered to it_. > But there is no way in our system to **make** judges adhere to either _stare decisis_ or textualism. Barring a complete rewrite of the Constitution to put actual limits on judicial power, the only limit is the fact that the courts don’t have an army to enforce their decisions. > That has always been my problem with your argument. An underlying assumption is that, if judge **promise** to adhere strictly to the text of the Constitution, that is an actual limit to their power. It’s not. Actual limits are rules that say judges cannot do something, not promises that they will not do something. > And absent any such actual limits to their power, getting nominees to promise to adhere to _stare decisis_ would be as effective, and IMO just as proper, as getting judges to promise to adhere to textualism. > > Sua Um… That’s a good point. OK, that’s a very good point. I have a response. But it will take me longer to write than I have right now. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 1, 2005, 8:58pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/69 "2005-11-01T20:58:47Z")
> [@treis](#): > > Amendments, impeachment, lack of enforcement powers and yes judicial wisdom. Well, at least you didn’t suggest “legislation” and then instantly back-peddle. 😉 But less frivolously, I still wonder at the suggestion about “lack of enforcement powers”. Are you seriously suggesting that it would be legitimate for one state to simply ignore a Supreme Court ruling with which it disagreed? I seem to remember some unpleasantness on the subject in the Deep South some forty years back. I am a little taken aback by the notion that those people in white sheets were simply exercising their rights to disagree with the Supreme Court. Please understand that I am not accusing you of being sympathetic to their cause. Just a bit surprised at the offering of an opt-out clause to, say, gay marriage or abortion or one of the other new “rights” I keep hearing are there already. Regards, Shodan ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 1, 2005, 8:59pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/70 "2005-11-01T20:59:19Z")
Fair enough. I await with bated breath. Sua ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [November 1, 2005, 9:13pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/71 "2005-11-01T21:13:07Z")
> [@Bricker](#): > > Amendments - if the text of an existing constitutional provision is clearly opposite a judge’s ruling, why is an amendment a check on the power? The Constitution gives Congress power over interstate commerce, and says that if a power is not listed, the federal government doesn’t have it. Congress tries to exercise power of home-grown and home-consumed wheat, and the Court says it can, because even home-grown and home-consumed wheat affects interstate commerce. Under that interpretation, what possible item or trade DOESN’T affect interstate commerce? And how would an amendment help? “Amendment 28: We REALLY, REALLY meant it, about the interstate commerce thing.” Well, Congress does have the power to regulate interstate commerce and to pass laws necessary and proper to do that. Whether regulating intrastate commerce that substantially affects interstate commerce is a necessary and proper action is unclear. If the populace wants it to mean only commerce that crosses state lines they can a) elect officials that will appoint judges that agree with that interpetation or b) make an amendment that restricts that power to the limits it desires. > [@Bricker](#): > > Impeachment - yes. I grant that this is a check on the power of the judiciary. It requires the assent of a majority of the House and the Senate. Does this mean you will stop going on about renegade justices? > [@Bricker](#): > > Lack of enforcement powers - how so? We are a nation of laws. What do you mean how so? Its been done before and if necessary could be done again. > [@Bricker](#): > > Judicial wisdom - look, stop saying this. It’s not a limit on your powers if it’s merely something you impose yourself. The very raising of the question suggests that the exercise of judicial wisdom has failed. No, the raising of this question means that some people think it has failed not necessarily that it has. And no, I will not stop saying this. Supreme Court Justices are the most educated, the most experienced and most dedicated to the rule of law government officials we have. They are the most trustworthy of politicians and they can be removed if necessary. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [November 1, 2005, 9:16pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/72 "2005-11-01T21:16:03Z")
> [@ElvisL1ves](#): > > Tough cookies for 'em, then. Maybe Utah needs to learn about the Civil War? Since then, we have a single country with a single set of federal laws which do supersede any state laws to the contrary, as you know too. Bullshit, and you know it. The Civil War settled no such issue; it simply made it clear that the states can’t leave the Union. The issue of whether or not states have the right to be different quite a different issue, and the assertion you make is unsupported by the Constitution, which safeguards the rights of states to BE different. Simple 8th grade Civics, you know. 😃 As for the more cogent question from **elucidator** , it is quite a typical misunderstanding of _Marbury v. Madison_\* to assert that the concept of judicial review was simply pulled out of Chief Justice Marshall’s ass. If you want to start a debate on the issue, I’ll be happy to join, but I suggest first reading at least two works on the subject: _The Oliver Wendell Holmes Devise History of the Supreme Court of the United States: Volume 1, Antecedents and Beginnings to 1801_ by Professor Julius Goebel, Jr., and _Politics and the Constitution in the History of the United States_, by Professor William Winslow Crosskey, whose conclusions are somewhat opposed on the subject. However, in brief, the answer is that: 1. There was some precedent for the concept of judicial quashing of Acts of Parliament in England prior to 1776, 2. The people at the Constitutional Convention who spoke in any way reflecting upon the concept of judicial review of constitutionality accepted the concept in some at least general form, 3. Many states had, during the period 1776 to 1803, adopted judicial review on the part of state supreme courts when addressing the constitutionality of state laws, and 4. There were acts by the federal government prior to 1803 which were based upon an assumption that the federal bench had the ability to disregard what it considered to be extra-constitutional legislation by Congress. As an example, the Judiciary Act of 1789 implies judicial review in the very fact that it gives jurisdiction to the Supreme Court to review actions of state courts which might concern issues of constitutionality. I know it isn’t particularly chic at present to accept that C.J. Marshall might actually have been doing what everyone pretty much expected and understood the Supreme Court should do. But regardless of whether it was _settled_, or _expressly granted_, it wasn’t just made up out of nothing. Can’t say the same about _Roe v. Wade_, really, but hell, no one really understands that decision anyway. 😛 ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [November 1, 2005, 9:19pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/73 "2005-11-01T21:19:00Z")
> [@Shodan](#): > > Well, at least you didn’t suggest “legislation” and then instantly back-peddle. 😉 > > But less frivolously, I still wonder at the suggestion about “lack of enforcement powers”. Are you seriously suggesting that it would be legitimate for one state to simply ignore a Supreme Court ruling with which it disagreed? I seem to remember some unpleasantness on the subject in the Deep South some forty years back. I am a little taken aback by the notion that those people in white sheets were simply exercising their rights to disagree with the Supreme Court. > > Please understand that I am not accusing you of being sympathetic to their cause. Just a bit surprised at the offering of an opt-out clause to, say, gay marriage or abortion or one of the other new “rights” I keep hearing are there already. > > Regards, > Shodan The point is that if the Supreme Court started going bonkers they still don’t have any power to enforce their rulings. Of course this is a last resort and will cause problems but its still a check on judicial power. The Supreme Court is not stupid nor is it blind. It can see this truth and won’t make a ruling that will meet serious opposition from a large majority of the people. In that way its another check on the “activism” of the Judiciary. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 1, 2005, 9:23pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/74 "2005-11-01T21:23:20Z")
> [@DSYoungEsq](#): > > Bullshit, and you know it. The Civil War settled no such issue; it simply made it clear that the states can’t leave the Union. Please. It made it clear that the states must accept federal laws as binding on them. What recourse would they have? Secession is out because of the Civil War, as you acknowledge, and there isn’t anything else. There isn’t anything the states they can do about a federal law they dislike except work to change it at the federal level. Clear now? > [@](#): > > The issue of whether or not states have the right to be different quite a different issue They do, but not in violation of federal law or the US Constitution. That was the original question, remember? > [@](#): > > However, in brief, the answer is that: In even briefer, the answer is that _Marbury_ was indeed an arrogation of power by the Supreme Court, as **elucidator** said, using the rationale you described. Voluntary acquiescence to it by the other branches is what made it the law of the land. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [November 1, 2005, 10:11pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/75 "2005-11-01T22:11:07Z")
> [@ElvisL1ves](#): > > Please. It made it clear that the states must accept federal laws as binding on them. What recourse would they have? Secession is out because of the Civil War, as you acknowledge, and there isn’t anything else. There isn’t anything the states they can do about a federal law they dislike except work to change it at the federal level. Clear now? > > They do, but not in violation of federal law or the US Constitution. That was the original question, remember? > > In even briefer, the answer is that _Marbury_ was indeed an arrogation of power by the Supreme Court, as **elucidator** said, using the rationale you described. Voluntary acquiescence to it by the other branches is what made it the law of the land. Since you neither define “arrogation”, nor do you explain how it can be an arrogation of power to do what the writers of the constitution intended, and what logic essentially dictated, this is nothing more than an unsupported assertion, which you are good at, but which is meaningless. 😉 ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [November 1, 2005, 10:15pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/76 "2005-11-01T22:15:18Z")
Ah, the old “you didn’t define your terms!” trick. Haven’t seen that since high school debate squad. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [November 1, 2005, 10:17pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/77 "2005-11-01T22:17:22Z")
> [@ElvisL1ves](#): > > Please. It made it clear that the states must accept federal laws as binding on them. What recourse would they have? Secession is out because of the Civil War, as you acknowledge, and there isn’t anything else. There isn’t anything the states they can do about a federal law they dislike except work to change it at the federal level. Clear now? > > They do, but not in violation of federal law or the US Constitution. That was the original question, remember? What YOU fail to remember is that it wouldn’t BE a violation of the Constitution in the absence of the unjustified expansion of federalist power by the Supreme Court (so the theory goes). So, to assert that the State of Utah (or wherever) should accept that it is not aggrieved by an expansive reading of Constitutional protections put in place by judicial activists on the bench because the Civil War said it had to submit to federal law is just plain ridiculous. There are plenty of good attacks to make on the assertion that states lose sovreignity when the Supreme Court acts to expand individual rights; asserting that the Civil War forces them to accept a jackbooted federal judiciary which intends to protect whomever it pleases under whatever interpretation of the Ninth Amendment or the Fourteenth Amendment it cares to try and get everyone to swallow is not one of them. 😛 ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 1, 2005, 10:18pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/78 "2005-11-01T22:18:57Z")
> [@DSYoungEsq](#): > > Since you neither define “arrogation”, nor do you explain how it can be an arrogation of power to do what the writers of the constitution intended, and what logic essentially dictated, this is nothing more than an unsupported assertion, which you are good at, but which is meaningless. 😉 I think you overstate. It is at least an open question whether _Marbury_ was a result the writers of the constitution intended. Given that there experience was derived from England, where the Courts were certainly subservient to the Parliament, that is by no means a given. Jefferson certainly was appalled by _Marbury_ (and yes, I know, Jefferson was not actually a writer of the Constitution). Sua ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 1, 2005, 10:20pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/79 "2005-11-01T22:20:03Z")
er, “their experience”. I’m a dunce. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2005, 10:25pm UTC](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835/80 "2005-11-01T22:25:34Z")
> [@SuaSponte](#): > > The problem with your argument is that it has the same weakness - strict adherence to the text of the Constitution would be an effective limit on the power of the judiciary _if judges adhered to it_. > But there is no way in our system to **make** judges adhere to either _stare decisis_ or textualism. Barring a complete rewrite of the Constitution to put actual limits on judicial power, the only limit is the fact that the courts don’t have an army to enforce their decisions. > That has always been my problem with your argument. An underlying assumption is that, if judge **promise** to adhere strictly to the text of the Constitution, that is an actual limit to their power. It’s not. Actual limits are rules that say judges cannot do something, not promises that they will not do something. > And absent any such actual limits to their power, getting nominees to promise to adhere to _stare decisis_ would be as effective, and IMO just as proper, as getting judges to promise to adhere to textualism. This response took some wind out of my sails, mainly because I realized suddenly that it’s correct. What I’m arguing for is a judicial culture of textualism. You’re right – it would not create any real, enforceable limit on power. But it would create a strong culture of deference to the written word that does not now exist. That culture would be of great force in inhibiting an individual rouge from having any effect, since he would know that his attempts to reason outside the text of the law would be swiftly reversed by his fellows. I admit - it’s not the Berlin Wall. My enthusiasm for the perfect world temporarily overrode my sense. It’s a limit only by virtue of the fact that when everyone is marching to the same drummer, it’s more difficult for one parade participant to march out of step. But why, then, is textualism better than stare decisis? Because when we approach an issue of first impression, we face the same questions we would otherwise. So far as I know, no one has ever tried to sue as a next friend on behalf of an unborn child, asking the federal government to recognize his due process right to life. That would be an issue of first impression; stare decisis won’t help us. So how should judges rule? I’d like to see a bench of pro-lifers, and I want to see Roe overturned, but I’d recoil in horror at a finding that a fetus has due process rights. Is there anything inherent in the principle of substantive due process that would make such a decision impossible? There is such a barrier in textualism. [Previous page](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835.md?page=3) [Next page](https://boards.straightdope.com/t/judicial-activism-and-conservative-judges/328835.md?page=5)