Guest Book

Butch, Thanks for opening yourself to the incivility that some have shown to you. These types of discussions seem to generate more heat than light (which is true of all points on the political spectrum) and that’s unfortunate. Thanks also for clarifying your earlier statements about judicial activism. I’m a little confused, though. At the end of your first post, you said you want “justices that will make decisions based on what the constitution says not what their personal agenda says.” In your more recent post, you said that although the Warren Court acted unconstitutionally, it acted ethically, and you seem to endorse that action. Isn’t “acting ethically” simply another way of saying “following your personal agenda?” Doesn't that view also mean that judges should be making ethical decisions, rather than judicial decisions? If I’m reading your posts correctly, what you’re saying is that you’ll tolerate an activist court as long as you like its decisions. You object only when you don’t like the decisions of an activist court. You can’t have it both ways. Many critics of the Warren and Burger courts at the time made this point: if you’re prepared to allow an activist court to read things into the Constitution because you like the results, what will happen when the justices on the court change and what will restrain these justices from reaching decisions you don’t like? When it comes to court decisions, how the court reaches a decision is as important as the decision itself. In Mr. Cohen’s article that you quote, the examples he gives of the Scalia/Thomas decisions focus only on the outcome of the decisions and not on the reasoning behind those decisions. For example, there are many legal scholars who personally support a woman’s ability to have an abortion, but who oppose Roe v. Wade because a right to an abortion is not in the Constitution. These scholars think that this issue is one that should be debated and decided by the state legislatures. If you allow a court to read things into the Constitution, it can read anything into the Constitution, and therefore it becomes a second legislative arm of the government, and that’s what has happened over the last 50 years. The Supreme Court is now a quasi judicial/legislative branch of the government except justices don’t have the same accountability as do legislators. Warren and Brennan were equally as unaccountable as are Scalia and Thomas. And Butch, that seems to be the bottom line – you like Warren and Brennan but you don’t like Scalia and Thomas.