Reply #31: I'd define it differently. Judicial activitation may be those acts of [View All]

[Biernuts]

commission or ommission that change the state of the law as opposed to applying it. Judicial activitism, isn't always bad, nor is it universally good; and, neither the right or left have a monopoly in this area.

Commission: Good activitism (by my view anyway): Brown v. Board of Education. Congress and the states did not pass laws integrating schools. The legal state before Brown was Plessy v. Ferguson, which established "Separate but Equal" as the constitutional standard. Brown reversed precedent (who ARE all those arguing during USSC nomination hearings that precedent always MUST be followed?) and ESTABLISHED a new law: Separate but equal is inherently unequal.

Commission: Bad - Roe v. Wade. Stripped states' authority to legislate relative to 1st term abortion and set off a 45 year (and counting) civil war that energizes the right wing's single-issue voters. (I'm personally pro-choice, but this was poorly-crafted law.) Had Roe states it wasn't a federal question, and abortion continued to be regulated by the states, the battles would be for the state legislatures. Britian, which has a very progressive law, doesn't have the acrimony since it was passed by Parliment, not imposed by the law lords.

Ommission - good. Dred Scott. The constitution at the time clearly allowed for slavery and all the shitty baggage that went with it. Had the court overturned it at Dred Scott, the Civil War would have occurred without the leadership of Lincoln and the US probably would be two separate (and unequal) countries. Great example of hating the practice, yet recognizing that a constitutional amendment was required for change.

Ommission - bad. Buck v. Bell (Never overturned - still the law of the land) Virginia can sterilize retarded persons involuntarily. Overturning on the basis of equal protection would have been proper. Letting it stand was activism and the rationale (not an exact quote) "A society that can require the supreme sacrifice from its finest citizens , can require lesser sacrifices from its lesser citizens .