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Judicial Activist Smackdown July 1, 2010

Posted by federalist in Judiciary.
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Justice Scalia added a concurrence in McDonald v. Chicago (starting p.52) to slam Justice Stevens for his judicial activism. My favorite excerpts, edited for clarity:

JUSTICE STEVENS [claims] that it is the courts’ prerogative—indeed their duty—to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine. … (Why the people are not up to the task of deciding what new rights to protect, even though it is they who are authorized to make changes, see U. S. Const., Art. V, is never explained.) … It is only we judges, exercising our “own reasoned judgment,” who can be entrusted with deciding the Due Process Clause’s scope … which basically means picking the rights we want to protect and discarding those we do not.

JUSTICE STEVENS insists that he would not make courts the sole interpreters of the “liberty clause”; he graciously invites “[a]ll Americans” to ponder what the Clause means to them today. The problem is that in his approach the people’s ponderings do not matter, since whatever the people decide, courts have the last word.

JUSTICE STEVENS abhors a system in which “majorities or powerful interest groups always get their way,” but replaces it with a system in which unelected and life-tenured judges always get their way. That such usurpation is effected unabashedly—with “the judge’s cards . . . laid on the table”—makes it even worse. In a vibrant democracy, usurpation should have to be accomplished in the dark.

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Comments»

1. The Man behind the Curtain - July 5, 2010

Political Activist Network – V O I C E S….

I found your entry interesting thus I’ve added a Trackback to it on my weblog :)…


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