Nathan Newman wrote:
>conservative judicial
>activists
-So what argument do you have from law or principle that conservative -judicial activism is any different from liberal judicial activism? Is -it that you just like liberal judicial activism better?
First, my argument is that the main limit on judicial activism is some inherent principle that demands some internal consistency, the basic form of consistency that the Lochner and Warren Courts both achieved to a certain extent.
But I actually am against judicial activism except for a limited defense of the Bill of Rights freedoms to maintain a counter-majoritarian defense of democratic opposition. I actually think that the Warren Court path of judicial activism, when it went beyond protecting free speech and democratic rights, set the stage for the reactionary judicial activism we now see. My favorite Justice is Hugo Black who had an absolutist defense of the Bill of Rights, but refused to join other liberals on the Court in finding "fundamental rights" not listed in the Constitution, such as privacy or an assortment of other procedural rights that he thought better governed in democratic fora like the Congress.
He criticized the GRISWOLD decision (the percursor to Roe) as a dangerous revival of judicial activism that would come back to bit progressives in the future. He wrote: "That formula [of Due Process rights], based on subjective considerations of 'natural justice,' is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights. .They would reinstate the Lochner, Coppage, Adkins, Burns line of cases, cases from which this Court recoiled after the 1930's, and which had been I thought totally discredited until now."
But there is a reality that an judicial activism used to defend the defenseless from the murderous power of the state or majoritarian racial subjugation is quite different from activism used to defend the state and corporate use of power to murder and subjugate. I happen to think that in the long term, progressives do better to trust in democratic mobilization over the elitism of the courts, but there is a philosophical defense of courts as a bastion of liberty against state power. It just is rarely achieved.
-- Nathan Newman