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Thread: Judicial Activism and Questions of Right and Wrong

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    Anti-Saldana Freedom Fighter Sons of Liberty's Avatar
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    Judicial Activism and Questions of Right and Wrong

    I read an interesting article by entitled "Justices, Judges and Judicial Activism" (click for article), it got me thinking about recently overturned SCOTUS decisions and the question of right and wrong. When the current SCOTUS justices overturn a decision of a former group of SCOTUS justices, does it mean that the current groups decision is "right" and the former group's decision is "wrong"? When individuals are appointed because they hold a certain leaning, are decisions tainted with judicial activism?

    In McDonald v. Chicago, Stevens, Breyer, Ginsberg, and Sotomeyer dissented. And in D.C. v. Heller, Stevens, Breyer, Ginsberg, and Souter dissented. I am pretty sure I know how Kagan is going to land. What will we say in 10 years if SCOTUS, filled with individuals like these, overturns the current McDonald v. Chicago and D.C. v. Heller decisions? Will we say that the 2020 SCOTUS got it right and the 2009 and 2010 SCOTUS got it wrong? After all, some would say justices of today know more than justices of the past.

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    Quote Originally Posted by Sons of Liberty View Post
    SNIP What will we say in 10 years if SCOTUS, filled with individuals like these, overturns the current McDonald v. Chicago and D.C. v. Heller decisions?
    It would be a short discussion. Just three words. Lock. And. Load.

    Of course, they know that is what gun owners would say. So, they won't "overturn" those decisions. If anything, they'll just nibble at them.

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    Regular Member wewd's Avatar
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    The dissenters in McDonald were attempting to retry Heller. That is patently clear when you read their opinions. But that does not mean they were the only "activists" on the court that day. The judges on the "right" would not hear anything about P or I. They like the fact that the government has a great deal of control over the unenumerated rights that we are allowed to enjoy, and P or I being reinstated would strip away most of that control. The only justice on the court who had any guts to look at that issue and made the case to overturn a couple of very old and very unfortunate cases, was justice Thomas. The whole point of McDonald was to get the court to see the gross errors in the Slaughterhouse and Cruikshank decisions, and to finally make them right. Normally the left/liberal side of the court would jump at the chance to retry those cases, but they couldn't do it over a gun case. The left hates guns, and the right hates rights. Those words were never truer before they were applied to McDonald.
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    Anti-Saldana Freedom Fighter Sons of Liberty's Avatar
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    Quote Originally Posted by Citizen View Post
    So, they won't "overturn" those decisions. If anything, they'll just nibble at them.
    I'm not as sure as you are. I have often wondered why Obama has not pushed an aggressive gun control policy. I'm thinking that his strategy is not to fight the issues of 2A with legislation, yet. I'm thinking that maybe he is pursuing the installation of activist judges to "govern" the country from the bench. It seemed that some were surprised at Sotomayor's turncoat position in McDonald v. Chicago given her confirmation testimony. With SCOTUS overturning the McDonald and Heller decisions, that would open up the entire country to an eventual disarming of the citizenry.

    All it would take to start the avalanche is one less conservative justice. I know that Kagan has been brought on to replace Stevens, which would not shift the court's opinion on the 2nd. But what if a conservative justice died before the start of the next SCOTUS session? Would it be possible that Stevens stays on and Kagan takes the place of the conservative justice?

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    Regular Member wewd's Avatar
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    Quote Originally Posted by Sons of Liberty View Post
    But what if a conservative justice died before the start of the next SCOTUS session? Would it be possible that Stevens stays on and Kagan takes the place of the conservative justice?
    I know you are thinking back to Roberts, O'Connor, and Rehnquist, but that switcheroo was only due to Bush taking advantage of Rehnquist's death to switch Roberts from O'Connor's replacement to take the Chief Justice position. O'Connor had not officially been replaced yet, so she stayed on until Alito was sworn in. But Stevens is gone, and Kagan has been sworn in. That is already set in stone. If anyone else takes off, it will simply start the nomination and confirmation process again for that position.

    The next most likely position to be open is Ginsburg's, as she has had health problems lately, and is getting up there in years. There were rumors that she was going to retire to take care of her husband, but as he has already passed recently, that isn't going to happen now. So it's anyone's guess as to whether she will retire before Obama's likely one-term presidency is up. I would say that she will, if only to have a much younger justice take her place in the liberal wing of the court. If that is her aim, she is not likely to chance a Republican president to appoint her successor.
    Last edited by wewd; 08-09-2010 at 02:28 AM.
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    Regular Member PincheOgro1's Avatar
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    The left hates guns, and the right hates rights. <-- The Right Hates rights ??? ... unless you're talking about baby killing or some other PERVERSION of life I don't understand where you get that idea from.

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    Quote Originally Posted by wewd View Post
    The next most likely position to be open is Ginsburg's, as she has had health problems lately, and is getting up there in years. There were rumors that she was going to retire to take care of her husband, but as he has already passed recently, that isn't going to happen now. So it's anyone's guess as to whether she will retire before Obama's likely one-term presidency is up. I would say that she will, if only to have a much younger justice take her place in the liberal wing of the court. If that is her aim, she is not likely to chance a Republican president to appoint her successor.
    So, let's take this thought one step further. With as much power a liberal court could exercise in opinionizing political theology into constitutional law, it seems that such a court could pave the way for broad "change" in our country. It seems that it would certainly be an easier path by replacing one conservative justice that the POTUS appoints, than the current process of a popularly elected legislature in the wake of the growing unpopularity with the current administration's policies.

    So, if one conservative justice dies unexpectedly, would we be out-of-line to suspect that someone in the administration may have had a hand in "ensuring" a replacement on the conservative side of the court? (I get the uneasy feeling that Obama's vision of an ideal society is being implemented with an "ends justify the means" mentality.)

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Quote Originally Posted by PincheOgro1 View Post
    The left hates guns, and the right hates rights. <-- The Right Hates rights ??? ... unless you're talking about baby killing or some other PERVERSION of life I don't understand where you get that idea from.
    Really? Abortion aside, I find it difficult to find evidence that either of the major parties likes inalienable rights. Take the US PATRIOT act, or FISA, or gitmo, or waterboarding, or whatever unconstitutional flavor of the week is currently being paraded around. I don't recall hearing how one party stood up for rights in any of those cases, they're both for the government having more power and the people having less.

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    Regular Member PincheOgro1's Avatar
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    Quote Originally Posted by bigtoe416 View Post
    Really? Abortion aside, I find it difficult to find evidence that either of the major parties likes inalienable rights. Take the US PATRIOT act, or FISA, or gitmo, or waterboarding, or whatever unconstitutional flavor of the week is currently being paraded around. I don't recall hearing how one party stood up for rights in any of those cases, they're both for the government having more power and the people having less.
    War time... hello !!! who cares about TERRORISTS. The only good terrorist is a DEAD terrorist. Unless you're a bleeding heart liberal.

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    I agree, Terrorists (at least "major" ones) should be executed.

    However, I don't think we should give the government the power to unilaterally decide who is a terrorist w/o a trial or due process.

    There are far to many examples of government accidentally or maliciously labelling somebody a terrorist or threat who in fact is not a terrorist or threat.

    Kill Terrorists, After a trial. Without torturing them.

    I like how you argue the idea that the Right (i.e. conseervative party) is in support of Inalienable Rights but in the same thread you argue that the "US PATRIOT act, or FISA, or gitmo, or waterboarding" don't infringe on any of those inalienable rights b/c the government tells us that it only uses these powers against "terrorists".

    War time... hello !!! who cares about TERRORISTS (or inalienable rights). The only good terrorist is a DEAD terrorist. Unless you're a bleeding heart liberal (i.e., a person who believes in inalienable rights).

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    Regular Member wewd's Avatar
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    Quote Originally Posted by PincheOgro1 View Post
    War time... hello !!! who cares about TERRORISTS. The only good terrorist is a DEAD terrorist. Unless you're a bleeding heart liberal.
    I can't tell if you're serious or if you are just a very clever troll. You certainly have the whole Neo-con thing down. If you think the "wars" in Afghanistan and Iraq were meant to protect the United States from anyone, you are simply naive. Maybe you should have listened to General Smedley Butler (two-time Medal of Honor winner and anti-war activist) and General/President Dwight Eisenhower (who famously coined the term "military-industrial complex") about why wars are really fought. If you think the PATRIOT Act and its associated laws were actually meant for so-called terrorists, you are incredibly naive. Either that, or you haven't been clued into the fact that you may very well be the terrorist the government had in mind when they wrote the law. Read the MIAC Report some time. They are taking away your rights and your liberty piece by piece, and you love them for it. Congratulations for being a dupe.
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    Regular Member coolusername2007's Avatar
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    Quote Originally Posted by wewd View Post
    /snip/ The next most likely position to be open is Ginsburg's, as she has had health problems lately, and is getting up there in years. There were rumors that she was going to retire to take care of her husband, but as he has already passed recently, that isn't going to happen now. So it's anyone's guess as to whether she will retire before Obama's likely one-term presidency is up. I would say that she will, if only to have a much younger justice take her place in the liberal wing of the court. If that is her aim, she is not likely to chance a Republican president to appoint her successor.
    Good points that got me thinking. I'll go out on a limb and say Ginsburg gives it up next spring, after the elections. She's is in failing health and I don't see her as staying on until her last dying breath. You're right, she won't risk an original constitutionalist like Thomas taking her place.

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Quote Originally Posted by PincheOgro1 View Post
    War time... hello !!! who cares about TERRORISTS. The only good terrorist is a DEAD terrorist. Unless you're a bleeding heart liberal.
    I care about people. I care about rights. Our government can label an individual however it wants to and I will still care that the rights of that individual be preserved. We aren't at war with anybody. The "war on terrorism" is a marketing campaign to rally the people around a single issue.

    Might I remind you that prior to our country being founded that the people who fought against the British soldiers could have been considered terrorists as well? There are numerous instances where American citizens have been arrested and held without a trial, denying the writ of habeas corpus, and then released without ever being tried for anything. Were those people terrorists? If so, why weren't they tried for something?

    Labels are convenient for the person using them. It's easy to dismiss a label, it's far harder to dismiss a person who is a citizen of the same country you are. Throughout history labels have been used to rally people to do terrible things. The citizens of Nazi Germany sought to rid their country of a variety of labels: Jews, homosexuals, gypsies, prisoners of war, criminals, the elderly, the disabled, and so on. Is a person less deserving of their inalienable rights because our government has labeled them? I think not.

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