Who is Althouse? * View only LAW posts * Contribute * Use my Amazon Portal
I can say in all sincerity, Ann, that's the best WSJ op-ed I've read in a long time.I did have a question about this though:The sought-after exit from "the abortion-umpiring business" would not take place. There is no exit.That easily translates into the conclusion: Roe v. Wade should not be overturned.I don't see why the inevitability of "abortion-umpiring" necessarily argues for upholding the right to abortion.Couldn't the umpires just rule abortions illegal and have it settled that way? Also, it seems that another reason to have enshrined abortion rights in the Constitution, besides sparing us a torturous political fight, would have been to preserve the right to an abortion.I think we are primarily interested in what the laws of our country and state are, and anti-abortion activists would be all for "judicial activism" if there were an existing federal law guaranteeing access to them.
In her op-ed, Ann makes the point, "It is worthwhile to devote some attention to the question of what should be determined by judges and what ought to be left to legislators." And she makes the point that if you believe X ought to be determined by legislators, you will say that judges who want to decide X are being "activist." Of course, if you believe X should be decided by judges, then the courts doing so are simply respecting people's fundamental rights.This is certainly a fair description of people's rhetoric. However, I think there are some issues where the courts have taken so looney a position that fair people on both sides will admit the judges are just making it up as they go along. Roe v. Wade, for example, is regularly scoffed at on both sides of the aisle as ridiculous constitutional posturing, and there are other cases too. These sorts of decisions do betray judicial activism in a fairly neutral analysis. Now, judicial activism is sometimes a good thing, one may suppose, although it usually prolongs a process that otherwise might be disposed of democratically if there were more willingness to wait around--gay marriage being the most obvious recent example. But it's hard to argue with Ann's basic point that a discussion of what lies in whose sphere of decision-making is worth having. I just wanted to say that the "judicial activist" label can plainly fit a variety of situations and is not always simply a disparaging term when the judge has done something you don't like.
Post a Comment