QUOTE(JUGGERNAUT @ Jul 7, 2005 -> 10:30 AM)
Judicial activism occurs when justices transform their job from interpreters to regulators. As such they legislate judicial guidelines to be used as a form of regulating judicial cases. Roe v Wade & the establishment of the Lemon Test are perfect examples of what judicial activism is. Both essentially established guidelines to govern all such judicial cases that had a weakly defined at best link to actual constitutional law. They would be anything but strict interpretations.
Hmm... I agree that Juggernaut's understanding of "judicial activism" is more accurate that of the original article (which I agree is really a fairly flimsy piece of legal writing). In principle, judicial activism is indeed when the judge steps out of his role as a neutral factfinder and inserts his own ideology as governing law.
That said, Juggernaut's examples are slanted to a conservative opinion. Many (if not most) middle of the road jurists do see at least some constitutional foundation for Roe, Griswold, and many of the so-called "activist opinions". I'll lay out my problems with Juggernaut's statements below:
1) The Ninth Amendment - The Ninth Amendment provides that U.S. Citizens retain other rights not currently stated in the Constitution. To the founding founders, this was logical and, in fact, necessary. It is too difficult for Congress to establish all the rights neccessary to protect all citizens in every possible situation.
The 9th Amendment provides flexibility for the courts to decide where the rights of individuals need protection. The conservatives who scorn "judicial activism" generally ignore the elasticity provided in the actual language of the constitution.
The conservative movement against so-called "judicial activism" is led by those who "strict constructionalists" who follow only the exact wording of the Constitutation. Liberal legal commentators have often pointed out that the irony of "strict constructionalists" is that they overlook an entire amendment of the constitution.
2) Roe v. Wade - In keeping with the elastic nature of the 9th Amendment, the Supreme Court in 1965 decided one of the three most important cases in history; Griswold v. Connecticut (along with Brown v. Board and Marbury v. Madison). In Griswold, the Court struck down a Connecticut law that forbid couples from purchasing contraceptives and birth control. The court held that individuals had the right to practice safe sex and to control whether or not they became pregnant. The court basically held that each person has the inherent right to protect themselves from disease or pregnancy if they so chose. In light of the dire, life-changing effect of the the law upon individuals people, there was no compelling governmental interest in forbidding the sale of contraceptives.
After Griswold, the court has decided a few more of these 9th Amendment penumbra cases.... one of which is Roe v. Wade. Roe of course holding that a woman had the right to control her own body.
In 1992, the Supreme Court altered Roe a great deal. In Casey v. Planned Parenthood, the court held that a woman's right to an abortion ended when the fetus became viable. At the point of viability, the fetus itself had a 9th amendment right to life, and was then protected by the Constitution.
How you feel about Roe, and when life begins, is a very personal decision. I don't wish to demean pro-choicers or pro-lifers.... My point is writing this thing is not to convince anyone which side is right or wrong. I am just hoping to provide some education on the issue of Roe's legal ties to the US Constitution.
3) Lemon v. Kurtzman - Generally, the Lemon test was founded in the Establishment Clause of the first amendment.... mandating the separation of church and state.
The Lemon test is now basically irrelevant... The Lemon Test was a product of the Burger court in 1971 and has largely been destroyed by the 1995 case Rosenberg v. University of Virginia. The test used in Lemon was bulky and was very difficult to apply evenly across numerous cases... As a result the Lemon test was abandoned. In fact, if the Supreme Court recognized Lemon today, it almost certainly would have struck down Bush's "faith-based initatives." The last gasp of breath for the Lemon Test came just two weeks ago, when the court upheld a display of the 10 commandments at the courthouse in Austin TX. The court uniformally ignored the opinion and has replaced it with a new doctrine that Permits a limted mixing of church and state so long as the government does not advance one religion or another.
I hope this helps clear up any ambiguity in the phrase "judicial activism." The truth comes neither from the conservatives nor the liberals. To some extent, judges have to use their best judgment under the 9th amendment to protect the rights of citizens. At the same time, its entirely disingenuous to disavow any protections of the 9th amendment as "activist" and outside the scope of the constitution.