It is interesting that when the SCOTUS came up with things like Roe. v. Wade and Miranda v. Arizona, conservatives complained about judicial activism. Now with Citizens United, the liberals are complaining about it.
Thom Hartmann, a liberal talk show host, wants to get rid of judicial review completely.
Showing posts with label judicial activism. Show all posts
Showing posts with label judicial activism. Show all posts
Thursday, December 11, 2014
Sunday, November 02, 2008
Why judicial activism is a red herring in the abortion debate
I still have trouble seeing why pro-lifers want abortion to be a state matter. In the case of gay marriage, social conservatives want an amendment preventing state judges or state legislatures from allowing it. Why not go for that with respect to abortion?
I have trouble seeing Roe as an unjustified instance of judicial activism. The court had to adjudicate between the rights of the pregnant mother and the rights of the fetus. If you think that, since it was the fetuses right to life that was at stake as opposed to the mother's right to privacy, if you think that all fetuses possess this right from the moment of conception, if you believe that the right to life takes precedence over all quality-of-life considerations including the right of privacy, then the only logical thing to fight for is the application of the equal protection clause of the Constitution to life in the womb. Why wimp out and hand it back to the states? Frank??
Of course, the right to life from conception has to be provable. The Roe argument is that that right is in doubt, and hence a right that is in doubt should not take precedence over a right that is not in doubt. I think Roe is right, unless you can establish the right to life beyond reasonable doubt. But if you're pro-life, that's your position, right?
If I am right, judicial activism is a red herring in the abortion controversy. Everyone likes judicial activism when it gets the results we want. We hate it when it gets the wrong results. The SCOTUS had to act, one way or the other. The only question is whether the Court made the right call or not.
I have trouble seeing Roe as an unjustified instance of judicial activism. The court had to adjudicate between the rights of the pregnant mother and the rights of the fetus. If you think that, since it was the fetuses right to life that was at stake as opposed to the mother's right to privacy, if you think that all fetuses possess this right from the moment of conception, if you believe that the right to life takes precedence over all quality-of-life considerations including the right of privacy, then the only logical thing to fight for is the application of the equal protection clause of the Constitution to life in the womb. Why wimp out and hand it back to the states? Frank??
Of course, the right to life from conception has to be provable. The Roe argument is that that right is in doubt, and hence a right that is in doubt should not take precedence over a right that is not in doubt. I think Roe is right, unless you can establish the right to life beyond reasonable doubt. But if you're pro-life, that's your position, right?
If I am right, judicial activism is a red herring in the abortion controversy. Everyone likes judicial activism when it gets the results we want. We hate it when it gets the wrong results. The SCOTUS had to act, one way or the other. The only question is whether the Court made the right call or not.
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