Recently, I participated in a discussion on Ann Althouse’s blog regarding Senator McCain and his attitudes or beliefs regarding the choice of justices for the Supreme Court. One of the issues addressed was that of judicial activism, which is a no-no for conservatives. Actually, judicial activism is being practiced with ardent fervor on the Supreme Court by the conservative justices who mask it under the rubric of "strict interpretation of the Constitution." Does anybody really believe that the founding fathers (pardon me ladies) had so much foresight that they were able to write a document over 200 years ago that would take into account all the changes that would occur in the centuries to come. Would someone please pass me an automatic weapon while I peruse the right to bear arms amendment?
Of course not. Unless I'm mistaken, I believe the Constitution has been amended a time or two. One of the amendments had something to do with ending slavery. If the founding fathers were all knowing that would have been an odd thing to omit. Actually they were very shrewd and the Constitution was drawn up in an atmosphere of political compromise after the Articles of Confederation failed. Slavery was allowed in the Constitution because men like Jefferson and Madison were from Virginia and the other southern states would have never countenanced a Constitution that prohibited slavery. The 18th amendment made it illegal to produce and consume alcohol. This was constitutional and judicial activism of the worst kind. Odd that the founding fathers didn't address that issue in the first place, given that much of the Constitution was probably formulated in ale houses.
The Supreme Court needs above all to consider the importance of justice for all the men and women and children of this country. Recent Supreme Court decisions advocated by the conservative justices have given much support to the revival of the death penalty. I am not going to argue for or against the death penalty. Rather I raise the question as to how can the death penalty be constitutional when a disproportionate percentage of the people who are executed are poor and the disproportionate percentage of executed persons are black. How can justice be served when we execute developmentally disabled people who cannot conceivably comprehend the nature of what they did? How can justice be served when prisoners waiting to be executed could be exonerated by new DNA evidence but no one is standing up for them? Didn't I just say I wasn't going to argue against the death penalty? I'm arguing against the way it has been and continues to be instituted.
No member of the Supreme Court can ever think that he or she is free of the personal beliefs and biases and the experiences which have shaped them. Can Justice Scalia ever render a strict legal opinion that is totally independent of his Catholicism? Can Justice Ginsburg ever be expected to forget the Holocaust? What is the impact of Justice Thomas’s perpetual anger, as evidenced in his television interview, on the decisions he renders? The real issue is not whether or not there is judicial activism. The issue is under what circumstances it occurs and to what degree is it open for all the people to see. Justice might be blind, but it is horribly offensive that it be deaf, dumb, and blind.
Fire away if you disagree, but please remember this is a brief post on this issue, not a full treatise/book. "Cry havoc and let loose the dogs of war."