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Sapere aude - dare to be wise
Wednesday, September 22, 2004
Posted 1:28 AM by Luke
Supreme Court activism and people's attitudes toward the court

Yesterday evening, the Federalist Society hosted a panel discussion on the topic of the judicial nomination process. One of the arguments set forth as to why the nomination process has been overwhelmed by politics is that the Supreme Court has created the expectation in the populace that it rule based on their positions on issues, rather than a strict textual adjudication of the law.

But does that argument make sense?

Well, let's look at the words of the justices themselves on the matter. Specifically I will quote Sandra Day O'Connor and Antonin Scalia. Their two styles and attitudes, as elucidated in their comments here, are striking.

Justice O'Connor:
There are more recent Supreme Court decisions on which dynamic dialogue between the Court and the America public continues. Since the Court struck down as unconstitutional limitations by states on abortions in the first three months of pregnancy, large numbers of people have taken regularly to the streets to demonstrate either their support or their opposition to the decision. Abortion is still hotly debated in all political arenas. No one, it seems, considers the Supreme Court decision in Roe v. Wade to have settled the issue for all time. Such intense debate by citizens is as it should be. A nation that docilely and unthinkingly approved every Supreme Court decision as infallible and immutable would, I believe, have severely disappointed our founders.
- The Majest of the Law, Chapter 6, "The Constitution":


Justice Scalia:
In truth, I am as distressed as the Court is--and expressed my distress several years ago, see Webster , 492 U. S., at 535--about the "political pressure" directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today's opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls "reasoned judgment," ... which turns out to be nothing but philosophical predilection and moral intuition.
- Planned Parenthood v. Casey, dissenting

As seen in the
National Jurist
and on
FOXNews

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