I have known for quite a while now that the vote I cast for you in November of 2008 – my first ever vote for a member of The Big Two – was one that I would not regret, because I am still a huge admirer of your intellect, but would come to view with a great degree of disappointment and anger. Read the rest of this entry »
Below is a transcript from a recent discussion that I participated in on a friend’s Facebook wall. It’s a great example of a rational debate among level-headed, informed citizens. Names have been changed to protect the innocent. 
-M. Frazier
-M. FrazierNR: Has anyone noticed that when it comes to abortion rights or gay marriage, conservatives are oft criticizing judges for being activists, but when the Roberts Court reverses 100s of years of legal precedent in aggregate, it’s not judicial activism it’s called being Constitutionalists?
BH: I have no idea what you just said- I’ve never even seen half of those words before. No, what I love is how “they” turn everything extreme- “Oh, you’re against abortion- so you want women to get raped and have the baby!” Do what? “You’re for gay rights, so you want your 2 year old to be exposed to gay lovers!” Huh? Common sense and moral values have been thrown out the Prius’ windows!
ENT: LOL @ BH’s comment!
NS: Those are not the words I used when I talked about Roberts. Mine involved a giant PORE.
M. Frazier: What does legal precedent have to do with Constitutionality?
NR: Nothing. I just think it’s ironic that when a judge goes against legal precedent or common understanding, and a conservative disagrees with the judge (allows gays to marry, for example), the ‘activist’ label is used. But when a judge reverses 175 years of legal precedent and common understanding (allowing corporations unlimited spending in political campaigns), it’s not called judicial activism. Both cases result in the same thing – the law of the land is altered. I would argue that the Roberts court, in a short time, has been an extremely ‘activist’ court. AND, I agree with Bobby 100%, both the far left and the far right have completely lost their senses.
M. Frazier: I would disagree that the practice is ironic, and would like to emphasize that precedent does not bind the Supreme Court in a meaningful way (http://www.freerepublic.com/focus/f-news/1558781/posts). The Judicial Oath binds these folks to rule for the preservation of the Constitutional structure of government, not necessarily according to precedent.
For example, precedent for continuation of segregation was established in Plessy v Ferguson. Thankfully, it was repealed in Brown v Board of Education… correctly overruling the notion of stare decisis, as is their charter (starting with the Marshall court). The Citizens United v FEC ruling that you mention is another fine example of this. Despite the implications, the Constitutional justification for the ruling is sound. From the majority opinion: “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful… The First Amendment confirms the freedom to think for ourselves.” Interesting point of view article: http://reason.com/archives/2010/01/28/a-blow-for-free-speech
Judicial activism is a separate topic from the one above, but still very important. Is there any doubt that a future Supreme Court, stacked with the likes of Sotomayor and Kagan, won’t overturn decisions of a prior court… like Citizens United v FEC, or DC v Heller? Both of those are quite vocal in their intent to use the Court to assert their political opinions into law, whether or not they are Constitutional.
Non-Constitutional judicial activism is outside the bounds of the Supreme Court’s job description, whether or not there is conservative or liberal precedent.
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