You’re crying wolf about “judicial activism.”

It is certainly possible to have a conservative, activist Supreme Court. A conservative, activist Court might declare, for example, that the Constitution forbids gay marriage or that the Constitution does not permit illegal aliens to receive any social services. Conservatives can pretend that the Constitution says whatever they’d like it to say as easily as liberals can.

It would be an activist ruling for the Supreme Court to say that the Constitution forbids late-term abortions. But the Gonzales v. Carhart decision does not do this. It merely says that the Partial-Birth Abortion Ban Act does not violate the Constitution on its face (although it may turn out to violate the Constitution as applied, if it proves harmful to women’s health). This is not “activist” in any meaningful sense.

A Supreme Court decision is not activist because you disagree with the result; it is activist if it rewrites the Constitution or statutory code to arrive at the result. Liberals and conservatives alike should oppose the philosophy of judicial activism, because it opens the door to future tyranny by a nine-member elite.

Aaron, if you read the whole article, you will see that the minority judges were aghast at the majority’s open antagonism to abortion — that is, they were not really using legal logic but imposing their personal morality.

Secondly, the major point that I raised with activism was not the decision itself but the open invitation by two of the judges for anti-abortion groups to submit more and more cases to the Court. This goes well beyond the usual accusations of activism and into actively soliciting anti-abortion submissions.

If this doesn’t count as judicial activism, then I reiterate my closing line: apparently only liberal decisions can be activist.

Chris, minority opinions are commonly “aghast” at the majority; that doesn’t tell us much about how sound the majority’s legal reasoning was.

The “solicitation” you’re referring to is a one-paragraph concurring opinion by Justices Thomas and Scalia, a single sentence of which states that they believe Roe v. Wade “has no basis in the Constitution” - i.e., it was an activist decision to begin with. I suppose you could take that as an invitation to file more anti-abortion petitions to the Court (assuming petitioners can’t do the math to figure out that two out of nine justices is not enough to get your petition granted). But then, the very next sentence of the concurring opinion suggests that the Partial-Birth Abortion Ban Act is unconstitutional under the Commerce Clause, which is just as much an invitation to pro-choice groups to petition to overturn the statute on that basis (albeit not a very tempting invitation, because again, two justices sharing that view doesn’t do you much good).

I do not think that Thomas and Scalia are above engaging in judicial activism, but this is a very weak example.

Aaron, I will write a longer response soon. Suffice to say that anyone interested in reading the actual Opinion of the Court complete with Thomas and Scalia’s invitation and the dissenting opinion can be found at http://www.supremecourtus.gov/opinions/06pdf/05-380.pdf

I hope that you are right, Aaron, but my reading of the opinion confirms my earlier opinions. I have no legal training, so it is eminently possible that I have misunderstood some aspects of the finding, but I would conversely have to say from reading the opinion that the majority justices did not understand the medical opinions given to them — in fact, it seems to me that there has been a wilful misreading of expert gynaecological opinion.

As I said, more later.

Fair enough, Chris, and excuse me for jumping down your throat on this. Anyone who openly mocks Margaret Atwood is OK by me.

Aaron,

I’ve taken this to another post. I realise you weren’t discussing the medical aspects of the case, but that’s what I’ve started with anyway.