When Republicans utter this term as an epithet against Judge Sotomayor, maybe they really mean “activism against our own preferences.” Consider the percentage of votes to strike down congressional legislation by 1991-2005 SCOTUS justices: Justice Thomas 65, Justice Kennedy 64, Justice Scalia 56, Justice Rehnquist 47, Justice O’Connor 47, Justice Souter 42, Justice Stevens 39, Justice Ginsburg 39, Justice Breyer 28.
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Here’s another dirty little secret: important parts of the “judicial activism” of “liberal” justices in recent generations were not quite as utterly untethered to the Constitutional text as they have been accused of. Rather, they were work-arounds about dubious activist precedents that had read meaning out of Constitutional texts – for example, the Slaughter-House Cases (1873), which pretty much drained the Privileges and Immunities Clause(s) of meaning – a lot of what the P&I Clause(s) could have been understood to have permitted or even required textually has simply been moved under the aegius of other clauses to avoid a messy undoing of those cases and their progeny. That’s how judicial sausages get made.
Actually, for all the talk about Roe/Casey and other hot-button precedents of the post-Brown era, it would be much more illuminating if someone bothered to ask SCOTUS nominees about hoary precedents like the Slaughter-House Cases – cases that the public and politicians don’t focus on but over which constitutional scholars have spilled much ink.
Also, the Civil Rights Cases (1883), an even bigger example.
I deny your premise that “judicial activism” means “striking down an act of Congress.”
Tell me again which acts of Congress were struck down by Ginsburg, Roe, and Webster.
Micha, if you’re going to quote me, do it accurately. I didn’t say “act of Congress,” I said “congressional legislation.” Roe dealt with state legislation, I believe, and it was ruled by a majority Republican court.
Todd,
I don’t believe you understand what “judicial activism” means. It does not mean the striking down of legislation as unconstitutional, it means creating new law, whole cloth that does not exist in the Constitution.
Judicial activism, is kind of like the “spirit” of Vatican II.
Tony, legislatures make laws, Courts don’t write them. Can you give an example of the federal courts creating new law?
Sure. Roe v. Wade made abortion legal in all 50 states through all nine months of pregnancy. Some nebulous right to “privacy” allowed women to kill their children in the womb which does not exist in the Constitution.
This is just one. Would you like some more?
Tony, you are mistaken.
Roe v Wade nullified laws in existing states. It did not create or write new law. It followed the wording of the 14th amendment regarding “persons born.” Children in the womb are not born, hence they have no rights according to the constitution. Also, the justices who ruled on Roe were mostly Republicans, not Democrats.