Friday, October 28, 2005

Conservative Judicial Activism

The Right is more in favor of judicial activism than it likes to admit to itself. ChargingRINO cites John Danforth:

They [the Religious Right]- they want a political judge. They want a judicial activist. This business about judicial conservatism and somebody who decides the law, that's baloney. I mean, that's what they should want. That - that is what the judge should be, somebody who interprets the law and not makes it. But forget about that. I mean, these people are just as activist as the People For the American Way and all those organizations."

It is possible to believe, as I do, that Roe stands on shaky legal reasoning, and still feel that future abortion cases ought to be decided on the basis of the facts of those cases themselves, rather than as an excuse to overturn a questionable piece of established law.

Justice Oliver Wendell Holmes famously asserted that "general propositions do not decide concrete cases." Neither do faulty precedents decide future cases.

Conservatives are fond of saying that they want Justices who will simply interpret the constitution as they find it. I would go one step further and seek Justices who interpret the constitution and established case law as they find it. The proper remedy for an activist judiciary is not new reverse activism, but legislative action.


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