[quote]thunderbolt23 wrote:
jsbrook wrote:
And this is precisely the problem. With me. With YOU. And with judges. I don’t actually think it is possible to avoid being influenced by your own view of morality and desires for the direction the country should head. I was simply pointing out that conservative judges are guilty as well. And I think would be increasingly show if they comprised a majority of the court.
I don’t expect perfection, but I expect professional, dispassionate commitment to fair application of law.
Conservative judges are not nearly as guilty of it as you let on, witnessed by your own admission that you have no recent decisions to back the point.
That said, and I have used this example a thousand times here: if the Supreme Court struck down progressive tax rates as a violation of the Equal Protection clause and compelled a “flat tax”, I would be outraged at the judicial activism, even though I favor, as a political matter, a flat(ter) tax rate structure.
I offer this only as an example, but conservatives are, by and large, much more amenable to understand the difference between politics and law. Conservatives say the same, generally, about abortion: that though the Constitution doesn’t protect a right to abortion, it also does not outlaw it should a state decide to permit it, even though the conservative may politically be against allowing abortion as a policy matter.
Name one instance when a left-liberal-“progressive” viewer of the law would think or has thought an activist protection of a right or policy they like as a policy matter was the wrong decision on the law.
Even a hypothetical will do.[/quote]
Thunderbolt, I don’t have too much more time to discuss this. I have lots of things to do before I leave for Italy next week. I’ll just say this: I genuinely think that many of the things conservative Justices feel have a constitutional dimension do not. And to the extent they do (such as campaign finance arguably), limitations do not infringe on the First Amendment. I think it would be a grave mistake to go down this path and constitutionalize these issues. If you want to take an originalist perspective, limitations on financial contributions were not at all what the founders envisioned when drafting the first amendment. From a commonsense perspective, I really do not think any voices are silenced by campaign limitations when people and corporations may still give plenty of money and can hold any rallies, andy political dinners, and make any speeches in favor of any candidate.
I do support more of a free market system and more deregulation, but Scalia has indicated a willingness to constitutionalize these issues that I feel is misplaced. If I have time and can find it, I will try and find some of his publications on the matter.
As far as recent examples of judicial activism, I think this cuts both ways. I certainly think the Warren court created law out of little more than air and constitutionalized things that had no constitutional dimension. The privacy rights are the most egregious example. Even where I agree normatively, I see little basis for grounding these rights in the constitution. They should be determined by state or federal law. But I struggle to think of any appreciable judicial activism on the part of liberals like this much past the 60s. That was a long time ago. As far as the gay marriage issue, I don’t think this is pulling rights out of the air at all. It follow pretty naturally from the 14th amendment and existing jurisprudence. I DON’T necessarily think legal benefits are constitutionally mandated. BUT, the court has determined that marriage is a fundamental right under the 14th amendment. Unanimously, I believe. So, if same-sex couples can be denied these benefits it’s either because marriage should not be defined to include them definitionally or because the strict scrutiny test is met. Meaning that denying them benefits serves a compelling government interest and is the least restrictive means of achieving that interest. This is the proper analysis.