I mentioned two issues that should be pretty non-debatable in protecting battered women and schoolchildren from violence and the conservative justices have determined that these issues are debatable. There is nothing in the constitution that distinguishes moral issues from non-moral issues.

I think we can both agree that protecting battered women and schoolchildren from violence are things that both, liberal justices and conservative justices agree on in principle. So there is no one taking ‘opposite sides’ here. Without knowing anything about the case, I bet these laws violated some greater constitutional principle, and that is why they were struck down. This does not necessarily have to be judicial activism. For example, say that my state of California made a law banning racist statements to be said in public. From now on, nobody could say any racist statement in public, no matter what the avenue and for no reason at all. I think you would agree that that law violates the greater constitutional principle of free speech, and had we been judges, we would strike that law down. Does that mean we took ‘opposing views’ regarding racism and its evils? Of course not, there was a greater constitutional principle at play here. The same could be said about why these laws were struck down.

More importantly, you write,

Also, the judiciary should not be affected any way by a poll, it is to determine cases individually based upon constitutional interpretation and precedent regardless of popularity.

If I had to sum up my views regarding judicial interpretation, it wouldn’t get much different than this. This is really all I had been saying, in other words, constitutional interpretation should have some degree of being time independent. This is in stark contrast to what liberal, particularly the living constitution judicial philosophy proponents would say. They take modern views regarding abortion to get at the privacy clause, they take modern views regarding gays to get at gay marriage, and they take modern views regarding the death penalty to strike down death penalty laws. To take an example of a case where I agree with the outcome, but disagree with how the case was ruled, let’s take the death penalty case, in Roper v. Simmons, where Kennedy used “national consensus” as a basis to strike parts of the death penalty down. The Wall Street Journal writes,

Yesterday’s ruling concerned a death penalty case, which isn’t something we usually write about. But what makes Roper notable, and worthy of wider debate, is the way it symbolizes the current Supreme Court’s burst of liberal social activism. From gay rights to racial preferences and now to the death penalty, a narrow majority of Justices has been imposing its own blue-state cultural mores on the rest of the country. We suspect it is also inviting a political backlash.

No doubt most Americans will concede that the death penalty for 16- and 17-year-olds is a difficult moral question. That is why different U.S. states have different laws on the matter, and we’d probably oppose such executions if we sat in a legislature. But rather than defer to the will of voters as expressed through state legislatures and at least two ballot initiatives (in Arizona and Florida), Roper imposes the view of five justices that the execution of 16- and 17-year-olds is both wrong and unconstitutional. As Justice Antonin Scalia writes in a dissent that is even more pungent than his usual offerings, “The court thus proclaims itself sole arbiter of our nation’s moral standards.”

Justice Kennedy rests his decision on his assertion that American society has reached a “national consensus” against capital punishment for juveniles, and that laws allowing it contravene modern “standards of decency.” His evidence for this “consensus” is that of the 38 states that permit capital punishment, 18 have laws prohibiting the execution of murderers under the age of 18. As we do the math, that’s a minority of 47% of those states. The dozen states that have no death penalty offer no views about special immunity for juveniles–and all 12 permit 16- and 17-year-olds to be treated as adults when charged with non-capital offenses.

Should we care what the ‘national consensus’ is in deciding Supreme Court cases? Originalist judicial philosophy would say no, liberal living constitution judicial philosophy would say yes. Please separate the outcome of this case from my point above, I personally tend to be against the death penalty, and executing minors more so, but that is not my point here, my point here is how should cases be decided. This is not all that is troubling, the Wall Street Journal also writes about an even more worrisome trend that liberal justices are taking. The WSJ writes,

Perhaps the most troubling feature of Roper is that it extends the High Court’s recent habit of invoking foreign opinion in order to overrule American laws. “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty,” Justice Kennedy writes. We thought the Constitution was the final arbiter of U.S. law, but apparently that’s passé.
In invoking international “opinion,” however, the majority also seems rather selective. Justice Kennedy cites the United Nations Convention on the Rights of the Child, which outlaws the juvenile death penalty. But that Convention also prohibits imprisonment without parole for juvenile offenders–a penalty favored by some, if not all, 50 states. Is the Court ready to sign on to that international standard too?

Such inconsistency suggests that the real reason this Court has taken to invoking “international opinion” is because it is one more convenient rationale that the Justices can use to make their own moral values the law of the land. And it is no surprise that Justice Kennedy’s majority opinion is joined by the four liberal Justices who have long been on record as opposing the juvenile death penalty–Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens. In Roper they finally found a case, and an inventive legal hook, on which they could lure Justice Kennedy.

Were not just talking about ‘national consensus’ anymore, liberal justices are starting to move towards international consensus too.

Regarding the right to die issues, I am torn on those. My conservative side thinks they are taking us in a very dangerous direction, but my libertarian side says that if its consenting adults, who am I to stop them? I don’t know enough about all of the details to say one way or the other, but I plan to do more reading on them, as they become more of an important issue.

HP - What is your opinion on the right to die issues (e.g physician assisted suicide, Terry Schiavo etc.). Clearly these are moral issues and in the Oregon case coming before the courts today, there have been two general referendums and numerous acts of the legislature to allow physician assisted suicide. Should the courts overrule these laws?

Things like abortion, gay marriage, and even the death penalty, are all currently moral issues where reasonable people can have varying disagreements on. Yet it is liberal justices who take one side of this debate, and use that belief to interpret the law. Hence the politicization of the court.

“We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more “liberal” - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled “conservative” vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

What do you count as moral. Two such pieces of legislation that were struck down by Thomas and Scalia and Co. one dealt with protecting battered women and another dealt with allowing guns in schools. In both cases legislation was written to protect schoolchildren and battered women and it was overturned by the conservative wing of the courts.

Btw, the article deals with primarily moral issues, the part of the law where liberal justices are the main judicial activist.

So I guess the impeachment trial of Clarence Thomas will be getting underway soon.