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Wednesday, June 08, 2005

A Liberal's Guide to Judicial Activism

I have to apologize for my post today. My internet connection must be all messed up because nothing I'm reading is making sense. For instance, if I go to the Supreme Court's website, I find an opinion re-criminalizing medical marijuana use and the sole dissenters are Justices Thomas, Scalia, and O' Connor. Now I know that can't be right, because Thomas and Scalia are extremist right wing judges; they couldn't possibly disagree with a thing like that, especially if Bush supports it.

I though it might just be the website, so I went to the Wall Street Journal's page, but it's the same problem. They have an editorial explicitly stating that they oppose the legalization of medical marijuana, but then it goes on to complain about the decision! This is crazy, if you don't like something, you should be happy when the court criminalizes it and vice versa. This is making me nuts, I'm gonna do a quick reboot and try again.

Ok, that's much better. Must have been a problem with the router or something, because I just paid a visit to the People for the American Way online and everything seems in order. The site now correctly states that

"[Appeals Court nominee William] Pryor, who has used the power of his office to engage in extreme, right-wing judicial activism, must not be confirmed to this powerful lifetime position. "
After all,

"Pryor defended an Alabama statute prohibiting so-called "partial birth" abortions even though the law was plainly unconstitutional because it lacked an exception for the preservation of the health of the pregnant woman, as required by Roe v. Wade"
and Pryor filed briefs arguing for severe restrictions on federal authority in

"United States v. Morrison...in which the Court ruled 5-4 that the federal remedy for victims of sexual assault and violence in the Violence Against Women Act was unconstitutional"
See, that makes a lot more sense. Judicial activism is when you disagree with a court ruling that something is unconstitutional, unless of course that thing is a law like the Violence Against Women Act. Then you should know that its constitutionality is irrelevant; to claim otherwise is obvious activism.

I'm just glad we have the Left has given us such a simple way to decide cases. Otherwise we'd have to rely on know-nothing hacks like Thomas and Scalia.

UPDATE: Just found this perfect case study on The Nation today:
"Of course, the federal government has a right--indeed, a responsibility--to intervene when the lives and liberties of Americans are threatened by the states, as has been the case when federal authorities have acted to protect the rights of racial minorities, women and people with disabilities. But to intervene with the express intent of denying Americans with serious diseases a generally well-regarded treatment option represents the worst sort of meddling by the federal government. "


Anonymous Anonymous said...

Actually, Scalia joined with the opinion of the court, and actually filed a concurring opinion. Rehnquist, Thomas, and O'Connor were the dessenting justices.

But anyway, I think Steven's put it very well when he explained that the court was did not pass judgement on the benefits of medicinal marijuana. The decision was what it was because the Constitution allows the fed to regulate marijuana (the whole interstate commerce deal).

So if you really don't want to be activist, I would concur with the decision of the court. I totally believe in legalization of medical marajuana (with much stricter regs than are currently in place in Cali), but as you say, Brash, disagreement with a law is not what makes it unconstitutional. Something the left needs to learn. So I agree with you general argument.

6/08/2005 09:53:00 AM  
Anonymous Anonymous said...

I don’t think the recent case was so much about “activism” as it was about ignoring the tenth amendment. I interpret activism as when the court falls in love with itself and waxes eloquently about “evolving standards of decency” which change from year to year (just like the Constitution itself). In these cases the Court plays a legislative role and determines what the law should say, instead of what the law actually does say.

The medical marijuana case was another instance in which the Court decided that the federal government has no limits. The first paragraph of Thomas’s dissent says it all: the marijuana was grown in-state and never crossed a state line…yet the Court somehow found the power to regulate it, the tenth amendment be damned. It is a perfect example of why we need people like Brown (who should get confirmed this afternoon) on the bench.

6/08/2005 10:31:00 AM  
Anonymous Anonymous said...

I can agree with your comment on Activism. If the disenting judges didn't have a legit argument behind them, and just wanted to use the decision to legalize medicinal pot, THAT would be activist. Clearly that's not the case. But I was trying to put the case in context of

I also am a states' rights guy, but in this case I have to side with the court's decision. Clearly federal drug laws are within the constitutional authority of the Federal gov't. But as Scalia said in his concurring opinion, the Necessary and Proper Clause gives the Gov't the power to regulate intrastate commerce where necessary to make a regulation of interstate commerce effective.

Now if you look at what was happening with medicinal marijuana laws in California and who was getting licenses to grow it, I think it clearly falls under that authority.

Anyway, like I said, I think medical marijuana would be a good thing for a lot of people, so I would support changing the Federal and State laws to allow it in a strict and regulated manner.

Guess there's room under the tent for some disagreement though, aye Steve?

6/08/2005 11:16:00 AM  
Anonymous Anonymous said...


If Scalia and Thomas can disagree on an issue involving commerce clause jurisprudence- then I guess you and I can also.

6/08/2005 11:28:00 AM  
Blogger Brash Limburg said...

My Bad on the Scalia think, cruised through too fast.

I think this case did involve activism, not pro-drug activism, but anti-federalism activism.

The main idea the court seemed to use to justify the decision is that the amount of marijuana produced in this case would have a signifigant effect on the supply and demand in the national market (making a comparison to homegrown wheat). I just don't buy the argument.

6/08/2005 11:34:00 AM  
Anonymous Anonymous said...


If you haven't already, you should read the original homegrown wheat case (which I believe is named Wickard). If you believe in the tenth amendment, this case and its progeny are infuriating.

6/08/2005 02:19:00 PM  
Anonymous Anonymous said...

I wish I could blog as good as you, but what I can do is give you a nice Guitar Lesson!

7/24/2006 01:33:00 PM  

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