Already I’m seeing and hearing reactions to today’s Supreme Court tossing of the DC gun ban saying that this is conservative judicial activism. As I understand it (I haven’t read the decisions myself), even the dissent is making that accusation.
I don’t agree, personally. I believe that the ruling was constructionist (which makes me wonder why Kennedy went with it) but let’s assume it was judicial activism. Is this not then an illustration about the foolishness of a judicial system that is allowed to deviate at will from the words on the paper? There is no right to an abortion listed in the Constitution, ala Roe vs. Wade. There is no language in the Constitution or even the state constitutions ensuring that gays have as much right to ‘marriage’ as others. And yet, courts have found that they are. This is the bed the liberals made: now lie in it.
As far as I’m concerned, if states want to decide to legalize abortion, or legalize gay marriage, so long as it is done via the legislative branch, which is supposed to represent the will of the people, I will not be happy but at least I can say that democracy is preserved and that there is at least hope that we can yet persuade people to another position. But on the current model, people are essentially disenfranchised. In order to overturn a ruling, in particular the SC ruling, you need to A. get a justice in there with the views you like and B. Get a case to come before them that matches the thing you want to accomplish.
Not easy to do. It can take a generation to pull it off, if not a century. Seems like a bad way to run a country, to me. If this is in fact an instance of judicial activism from the conservative side, then let this be a warning and a call to action to the liberals: it’s time to stop using the courts to push our agendas and trust the people and the legislative processes.