Judicial Activism & The Next Supreme Court

The activist wing of the Supreme Court, that wing associated with the "living Constitution" theory and internationalism, has shown their true colors. The case of Kennedy v. Louisiana was a decision by the five activists on the Court holding that capital punishment could not be constitutionally imposed for child rape. Faced with evidence that the legal justification underlying their policy decision was demonstrably wrong, the activists have refused to revisit their decision. This is proof that they are legislating their policy preferences from the bench and only thereafter attempting to justify their decision with a bare patina of legal reasoning.
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I have posted previously on judicial activism and the fundamental danger it presents to our country. The term "judicial activism" refers to unelected judges who disregard the intent of the founders, twist precedent and ignore the limited powers of the court to make law of their own policy preferences. Three years ago, activists extinguished our 5th Amendment protection against government taking our private property and transferring it to another private party. A few months ago, activists crafted a vast expanion of Court powers to oversee decisions of national security and war. We have seen activists come within one vote of gutting the Second Amendment. And those are only a few of the activist decisions over the past few years. None of those decisions could be justified on original intent of the founders, nor could they be justified on precedent. Instead, these were policy decisions founded on faulty reasoning, twisting of precedent, and, under the relatively recent activist theory of internationalism, cherry-picking of precedent and laws from foreign jurisdictions.

If more proof of that were needed, it could not be clearer than in the case of Kennedy v. Louisiana, the recent Supreme Court case holding capital punishment for child rapists unconstitutional. I critiqued in a post here the legal reasoning of the activist wing of the Court in Kennedy. The foundation of the Court's reasoning was:

[T]he Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.” Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that “currently prevail.” The [8th] Amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society."

The activists then cast about for cases and facts that would support their policy preference. They held that a "consensus" existed at law that capital punishment should not be imposed on child rapists. Shortly after the Court announced the decision, a gaping hole in the activists' reasoning was brought to their attention. Congress had passed a law in 2006 applying to the military that allowed execution for child rape.

That law directly undercut the reasoning by which the activists on the Court reached their decision. If the activists were really engaged in anything other than announcing their policy preferences as Constitutional law, then they would have reopened the case and decided it anew. Instead, today, the five activisits on the Court who formed the majority in Kennedy voted to deny a rehearing. This was the reaction from Justice Scalia:

"The views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down" to its own judgment that the death penalty is too severe a punishment for a crime that does not result in death. . . . Of course, the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.'"

If you like judicial activism, you'll love a President Obama. Given his opposition to both Judges Alito and Roberts as well as his devotion to radical philosophy, you could expect him to nominate judges who would rip Constituional law from its Constitutional moorings and move it into a whole new direction. It would be activism on steroids. This is a post from a few weeks ago by Power Line, speculating on likely Supreme Court nominees by a President Obama:

Over at Bench Memos, our friend Ed Whelan has started a series in which he considers some of the individuals who have been mentioned as prospective nominees to the Surpeme Court, should Barack Obama be elected. Ed begins with Harold Koh, dean of Yale law school.

Koh is a self-described "judicial transnationalist." Here is how Koh explains this philosophy:

[The transnationalist] tends to follow an approach suggested by Justice Blackmun in the late 1980s: that U.S. courts must look beyond national interest to the “mutual interests of all nations in a smoothly functioning international legal regime” and must “consider if there is a course that furthers, rather than impedes, the development of an ordered international system.”

Generally speaking, the transnationalists tend to emphasize the interdependence between the United States and the rest of the world, while the nationalists tend instead to focus more on preserving American autonomy. The transnationalists believe in and promote the blending of international and domestic law; while nationalists continue to maintain a rigid separation of domestic from foreign law. The transnationalists view domestic courts as having a critical role to play in domesticating international law into U.S. law, while nationalists argue instead that only the political branches can internalize international law. The transnationalists believe that U.S. courts can and should use their interpretive powers to promote the development of a global legal system, while the nationalists tend to claim that U.S. courts should limit their attention to the development of a national system.

Ed notes that, true to his transnationalist philosophy, Koh filed an amicus brief in Lawrence v. Texas arguing that international and foreign court decisions compelled the Supreme Court to strike down Texas’s ban on homosexual sodomy. And he submitted an amicus brief (to the Connecticut supreme court) arguing that comparative precedents from foreign countries require recognition of a constitutional right to same-sex marriage.

Read the entire post. Actually, of all the damage a President Obama could do to our country, it is in the choices he will make regarding Supreme Court nominees that he could do the most fundamental mischief.