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Contrary to Popular Belief, Judicial Activism in Modern History is Mostly a Myth

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The death of Justice Antonin Scalia has set the stage for the always politicized conversation about Supreme Court appointments and confirmations.

Within minutes of the news of his passing, both sides of the aisle were quick to express their political intentions: Republicans want to obfuscate and delay appointments until after the election; Obama and Democrats want to move forward with the standard procedures.

And American voters have bought into this narrative — hook, line, and sinker.

Each election cycle, too much attention is dedicated to how future SCOTUS nominations will impact the ideological balance of future critical decisions. Also, fear of overturning past divisive Supreme Court cases — Roe v. Wade, Citizens United v. FEC, Obergefell v. Hodges, etc. — creeps into the minds of American voters. Even those tempted to bypass the traditional two-party options feel obligated to lean one way or another, depending on their ideological biases regarding these landmark decisions.

Consider abortion.

Roe v. Wade has not only served as the precedent for several cases that further solidify abortion rights, but has been a litmus test leveraged by single-issue voters for all presidential elections. A solid majority of Americans — 76 percent — stated that it is important that future Supreme Court nominees “share their views on abortion.” Pro-choice voters fear that a Republican President might make an appointment that would help bring about the end of Roe v. Wade, while pro-life voters salivate at the thought.

What if I told you it was actually Republican presidents who were responsible for Roe v. Wade becoming a landmark decision?

Roe v. Wade was decided by a 7-2 margin. The majority decision was led by Harry Blackmun, who was nominated by Richard Nixon. In fact, five of the concurring opinions were provided by Republican-nominated justices: three from Nixon and two from Eisenhower. The dissenting opinion was provided by Byron White, who was nominated by John F. Kennedy. In this case, a Democratic-appointed justice led the charge against abortion.

Forty plus years later, another crucial Supreme Court decision regarding a divisive social issue was handed down—this time regarding marriage equality, Obergefell v. Hodges—the decision that guaranteed marriage as a fundamental right for every citizen regardless of sexual orientation—has become the Millennial generation’s version of Roe v. Wade. The fear among many young voters that a right-wing president augmenting the ideological balance of the courts inspires left-leaning or independent voters to throw their votes toward the Democratic Party.

What if I told you it was actually Republican presidents who were responsible for Roe v. Wade becoming a landmark decision?
Conventional political thought insinuates that those supporting same-sex marriage find themselves more closely aligned with the Democratic Party. However, the Democratic Party deserves little to no credit for the codification of marriage equality — considering that the party’s most prominent leaders—including Barack Obama, Joe Biden, Hillary Clinton, Harry Reid, and Charles Schumer—publicly stated at one time or another that marriage was strictly between a man and a woman during their political tenure.

Don’t forget that the Defense of Marriage Act (DOMA) was widely supported by Democrats, including many of the aforementioned members of Congress. It wasn’t until the momentum of public opinion changing did these candidate begin to “evolve” their own views.

Furthermore, marriage equality became law when SCOTUS was comprised of mostly Republican appointees. The composition of the Supreme Court at the time of this decision most certainly tilted to the right: Five justices—Anthony Kennedy, John Roberts, Antonin Scalia, Samuel Alito, and Clarence Thomas—were nominated by Republicans. Kennedy, who was appointed by Reagan, delivered the majority view supporting the constitutional right for gay couples to get married.

The same circumstances apply to National Federation of Independent Business v. Sebelius, which was the Supreme Court decision that upheld the individual mandate that was the keystone of the Affordable Care Act, also known as “Obamacare.” The swing vote on this decision came from Justice John Roberts, who was appointed by George W. Bush.

Some of our country’s most prominent court decisions defied the purported ideological foundations of the two parties. Prior to the death of Justice Scalia, the ideological composition of our nation’s highest court leaned right. Regardless, the “liberal minority” has been on the “winning side” of 19 of 26 closely-divided ideological cases in its most recent session.

The emotional and partisan ruckus that each SCOTUS nomination entails is useless at its best, illogical at its worst. Fears of overturned decisions are ungrounded considering what it actually takes for this scenario to play out. Though not unprecedented, overturning SCOTUS decisions requires either a constitutional amendment or another SCOTUS decision that directly reverses the previous decision.

The Supreme Court issuing a decision that reverses a prior one is a rare occasion. It has happened before. In the history of the high court, 123 decisions have been overruled by a later decision. Stare decisis—the legal doctrine that compels courts to defer to precedence—obligates judges to place a high value on the legal arguments established in previous cases, making it very difficult to reverse a well-established precedent.

Decisions can also be abrogated by a constitutional amendment. This is even rarer. A constitutional amendment must first be proposed with the support of two-third vote in both houses of Congress or a constitutional convention comprised of two-thirds of state legislatures. To be codified in the Constitution, three-fourths of the states must ratify the amendment.

It would take a significant degree of political will to overturn something like same sex marriage—political will that simply doesn’t exist considering the ever increasing social acceptance of the practice. Furthermore, considering recent political gridlock, can you imagine Congress working together closely to produce such a landmark piece of legislation?

Supreme Court appointments compel many voters to simply vote along party lines and further bolster our country to our antiquated two-party system. Always vote your conscience, but just remember that history shows that the ideological bias of the appointing president doesn’t always matter. Don’t let one issue dictate how you vote.

Photo Credit: Alex Staroseltsev / shutterstock.com

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72 comments
RalphKeniston
RalphKeniston

Also, take the time to read Mr. Zmuda's post below of a Lewis Powell memo. The more things change,....

It reinforces a long-held theory of mine, i.e. the mass movements of the 60's were made up of two basic elements: the hardcore "revolutionaries" Justice Powell describes, and the hangers-on, those, like myself, who were just along for the "sex, drugs & rock 'n roll." When the shooting started (e.g. Kent St, Jackson St), the hangers-on decided they had better things to do, but the hardcores saw it wasn't going to be handed over to them and, rather than fight to take it, went underground and successfully worked to infiltrate and take over - educational systems, social services, those segments of society not ruled by greed.. Can't beat greed. So, in the end, they won, or, at least, are winning. The mess you see today of those systems is directly traceable to that infiltration. 

RalphKeniston
RalphKeniston

Could not disagree more strongly with the theme of this article. "..voters have bought into this narrative..." - of course we have, it's the political reality we live in, not some "narrative."  And " too much attention " - I think not. It will be the decisions of the SC, and therefore the makeup of that court, that will ultimately determine the direction taken by this great experiment in democracy in which we are engaged. On the one hand, the author makes a false analogy of the times we live in now, and the associated political attitudes and tenor, to times and attitudes long past. Then, on the other hand, he implies the swings of  the court recently are analogous. Notice how blithely he breezes past the fact that those swings have only been in the conservative-to-liberal direction, never the opposite. No, the makeup of the court needs to, as a minimum, remain as it is, and no Obama appointee will allow that. Future retirements will be dealt with at such time as they occur.

Robert Zmuda
Robert Zmuda

CONFIDENTIAL MEMORANDUM Attack on American Free Enterprise System DATE: August 23, 1971 TO: Mr. Eugene B. Sydnor, Jr., Chairman, Education Committee, U.S. Chamber of Commerce FROM: Lewis F. Powell, Jr. This memorandum is submitted at your request as a basis for the discussion on August 24 with Mr. Booth (executive vice president) and others at the U.S. Chamber of Commerce. The purpose is to identify the problem, and suggest possible avenues of action for further consideration. Dimensions of the Attack No thoughtful person can question that the American economic system is under broad attack. This varies in scope, intensity, in the techniques employed, and in the level of visibility. There always have been some who opposed the American system, and preferred socialism or some form of statism (communism or fascism). Also, there always have been critics of the system, whose criticism has been wholesome and constructive so long as the objective was to improve rather than to subvert or destroy. But what now concerns us is quite new in the history of America. We are not dealing with sporadic or isolated attacks from a relatively few extremists or even from the minority socialist cadre. Rather, the assault on the enterprise system is broadly based and consistently pursued. It is gaining momentum and converts. Sources of the Attack The sources are varied and diffused. They include, not unexpectedly, the Communists, New Leftists and other revolutionaries who would destroy the entire system, both political and economic. These extremists of the left are far more numerous, better financed, and increasingly are more welcomed and encouraged by other elements of society, than ever before in our history. But they remain a small minority, and are not yet the principal cause for concern. The most disquieting voices joining the chorus of criticism come from perfectly respectable elements of society: from the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians. In most of these groups the movement against the system is participated in only by minorities. Yet, these often are the most articulate, the most vocal, the most prolific in their writing and speaking. Moreover, much of the media -- for varying motives and in varying degrees -- either voluntarily accords unique publicity to these "attackers," or at least allows them to exploit the media for their purposes. This is especially true of television, which now plays such a predominant role in shaping the thinking, attitudes and emotions. The campuses from which much of the criticism emanates are supported by (i) tax funds generated largely from American business, and (ii) contributions from capital funds controlled or generated by American business. The boards of trustees of our universities overwhelmingly are composed of men and women who are leaders in the system.Most of the media, including the national TV systems, are owned and theoretically controlled by corporations which depend upon profits, and the enterprise system to survive. Tone of the Attack;This memorandum is not the place to document in detail the tone, character, or intensity of the attack. The following quotations will suffice to give one a general idea: William Kunstler, warmly welcomed on campuses and listed in a recent student poll as the "American lawyer most admired," incites audiences as follows: "You must learn to fight in the streets, to revolt, to shoot guns. We will learn to do all of the things that property owners fear." The New Leftists who heed Kunstler's advice increasingly are beginning to act -- not just against military recruiting offices and manufacturers of munitions, but against a variety of businesses: "Since February, 1970, branches (of Bank of America) have been attacked 39 times, 22 times with explosive devices and 17 times with fire bombs or by arsonists." Although New Leftist spokesmen are succeeding in radicalizing thousands of the young, the greater cause for concern is the hostility of respectable liberals and social reformers. It is the sum total of their views and influence which could indeed fatally weaken or destroy the system.A chilling description of what is being taught on many of our campuses was written by Stewart Alsop:"Yale, like every other major college, is graduating scores of bright young men who are practitioners of 'the politics of despair.' These young men despise the American political and economic system . . . (their) minds seem to be wholly closed. They live, not by rational discussion, but by mindless slogans." A recent poll of students on 12 representative campuses reported that: "Almost half the students favored socialization of basic U.S. industries." A visiting professor from England at Rockford College gave a series of lectures entitled "The Ideological War Against Western Society," in which he documents the extent to which members of the intellectual community are waging ideological warfare against the enterprise system and the values of western society. In a foreword to these lectures, famed Dr. Milton Friedman of Chicago warned: "It (is) crystal clear that the foundations of our free society are under wide-ranging and powerful attack -- not by Communist or any other conspiracy but by misguided individuals parroting one another and unwittingly serving ends they would never intentionally promote." Perhaps the single most effective antagonist of American business is Ralph Nader, who -- thanks largely to the media -- has become a legend in his own time and an idol of millions of Americans. A recent article in Fortune speaks of Nader as follows: "The passion that rules in him -- and he is a passionate man -- is aimed at smashing utterly the target of his hatred, which is corporate power. He thinks, and says quite bluntly, that a great many corporate executives belong in prison -- for defrauding the consumer with shoddy merchandise, poisoning the food supply with chemical additives, and willfully manufacturing unsafe products that will maim or kill the buyer. He emphasizes that he is not talking just about 'fly-by-night hucksters' but the top management of blue chip business." One campus radical demand was conceded by university heads only to be followed by a fresh crop which soon escalated to what amounted to a demand for outright surrender." One need not agree entirely with Mr. St. John's analysis. But most observers of the American scene will agree that the essence of his message is sound. American business "plainly in trouble"; the response to the wide range of critics has been ineffective, and has included appeasement; the time has come -- indeed, it is long overdue -- for the wisdom, ingenuity and resources of American business to be marshalled against those who would destroy it.

Wayne Bishop
Wayne Bishop

Just goes to show you how a partys stance changes with the wind.

Mike Logan
Mike Logan

You're not looking very "independent"...is that just a Facebook name now?

Don Miller
Don Miller

Media focus using smoke and mirrors!! Sure wonderful aren't they?+

Matthew Walsh
Matthew Walsh

Don't forget the human baby. Everyone neglects to mention the genetically and physically separate human being that is killed. And we dont want tax dollars paying for it. Taxes are for govt operations. Period!

PaulLillebo
PaulLillebo

The author is right in pointing out that presidents and voters have often been surprised by the voting patterns of SC justices. One reason is that the media invariably simplifies, and the public therefore often misunderstands the core issue in SC cases; the issue is often not what the public thinks it is. 

For example, Roe v. Wade was not about being for or against abortion. When the author writes that Byron White "led the charge against abortion," that's too simplified. The question in that case, after the court had defined abortion as a right to be protected under the 14th Amendment, was whether Texas had shown an overriding social purpose that would allow it to enforce its abortion law on Ms. Roe, as well as "due process" (which the court held would have to be "substantive") in the passing and enforcement of its abortion law. The seven justices in the majority didn't vote on whether abortion should be legal or illegal, they made the finding that Texas had not met their standard necessary to allow the state to restrict Ms.Roe's right, which the state theoretically could. 

The Roe court agreed that states could have laws regulating abortion. By the way, the court's detailed model law included in the opinion, which proposed a ban on abortion during the first trimester of pregnancy, was of course obiter dictum; it is not law and it is not precedential. Granted that all this may be too detailed for an article such as this, but the result of simplification is often false information, which leads to an uninformed public.

Joshua La Roche
Joshua La Roche

Yea when a racist wants all the black vote for his party even though his party has done nothing positive for them that's what happens

Joshua La Roche
Joshua La Roche

Most common sense people don't care they just don't want tax dollars paying for it

Jon Worrel
Jon Worrel

"Pro-choice voters fear that a Republican President might make an appointment that would help bring about the end of Roe v. Wade, while pro-life voters salivate at the thought." "Salivate" at the thought of abortion? That's quite the inappropriate word choice, if not a very disrespectful representation of American voters.

krw1943
krw1943

You on Hillary's staff?

Randy Judd
Randy Judd

Here's an insight: I’m writing to you today to announce the death of the Republican Party. It is no longer a living, vital, animate organization. It died in 2016. RIP. It has been replaced by 6 warring tribes: Evangelicals opposed to abortion, gay marriage, and science. Libertarians opposed to any government constraint on private behavior. Market fundamentalists convinced the “free market” can do no wrong. Corporate and Wall Street titans seeking bailouts, subsidies, special tax loopholes, and other forms of crony capitalism. Billionaires craving even more of the nation’s wealth than they already own. And white working-class Trumpoids who love Donald. and are becoming convinced the greatest threats to their wellbeing are Muslims, blacks, and Mexicans. Each of these tribes has its own separate political organization, its own distinct sources of campaign funding, its own unique ideology – and its own candidate. What’s left is a lifeless shell called the Republican Party. But the Grand Old Party inside the shell is no more. I, for one, regret its passing. Our nation needs political parties to connect up different groups of Americans, sift through prospective candidates, deliberate over priorities, identify common principles, and forge a platform. The Republican Party used to do these things. Sometimes it did them easily, as when it came together behind William McKinley and Teddy Roosevelt in 1900, Calvin Coolidge in 1924, and Ronald Reagan in 1980. Sometimes it did them with difficulty, as when it strained to choose Abraham Lincoln in 1860, Barry Goldwater in 1964, and Mitt Romney in 2012. But there was always enough of a Republican Party to do these important tasks – to span the divides, give force and expression to a set of core beliefs, and come up with a candidate around whom Party regulars could enthusiastically rally. No longer. And that’s a huge problem for the rest of us. Without a Republican Party, nothing stands between us and a veritable Star Wars barroom of self-proclaimed wanna-be’s. Without a Party, anyone runs who’s able to raise (or already possesses) the requisite money – even if he happens to be a pathological narcissist who has never before held public office, even if he’s a knave detested by all his Republican colleagues. Without a Republican Party, it’s just us and them. And one of them could even become the next President of the United States. Robert Reich

Ben Hardin
Ben Hardin

The article convincingly supports the tenant that whichever party has a President in power to appoint Justices so far has not been predictive of the idealogy surrounding the arguments that the appointees have made actual cases. It's encouraging to think that it holds true as the rule of law should trump idealogy. I doubt, however, the concluding sentence of the article as I don't believe a majority of voters think nearly as much about Supreme Court as they do about Congress. Perhaps it will be different this time around. Can't blame voters, with their limited understanding and perspective, for trying. There are far more weightier reasons the two-party system persist and those weightier reasons are structural, such as the voting system.

Brent Armstrong
Brent Armstrong

Simply Google, Was Chief Justice Roberts blackmailed into Supporting Obamacare? There are about a half dozen or more articles written on this topic, by a variety of sources.

Brent Armstrong
Brent Armstrong

Valid point. There are theories as to why Roberts strayed, and instead of interpreting the Constitution on the matter, he sided with Obama. The popular theory as written about in Esquire, is that Robert's 2 adopted children were brought to America outside of normal, legal process. And therefore Obama developed knowledge of this and blackmailed Roberts. This makes perfect sense, since Roberts ruling made no sense! !

Jerry Twomey
Jerry Twomey

As of 1964 (LBJ and Civil Rights) the demographics of the 2 parties had a radical change. Consequently it's a moot point.

Liz Toy
Liz Toy

Justice Blackmun became a Supreme Court Justice because the Senate would not confirm Fortas. Great article I read somewhere warning Rs not to repeat the Fortas mistake.

Edward Renner
Edward Renner

Justices are supposed to be beyond political influences, that's why they are appointed for life. If they are going to be judicially active, maybe it's time for term limits on Judges or having a means to unseat them for Constitutional cause.

Matthew Crockett
Matthew Crockett

Anthony Brancato Your post has nothing to do with what I said and is just an excuse to hijack my comment because you are too lazy to create your own soap box in a place better-suited for it.

David Steffens
David Steffens

The truth is abortions were happening, but women were dying from them , making legal only prevents those deaths

HughMcgillivray
HughMcgillivray

Exactly! I was around then and remember it well although its more complicated than that. Regardless of whether its legal or not abortions will happen and bringing it into the light was a way to regulate it and those who practice in order to save those lives.

Jay Stooksberry
Jay Stooksberry

Right, but Roberts was a conservative backed Justice. Wouldn't his backing of ACA be antithetical to the claim he was paying a conservative agenda?

Jay Stooksberry
Jay Stooksberry

Author of the article here. The headline was not my choice.

Anthony Brancato
Anthony Brancato

The Constitution is not a lunar eclipse - therefore it has no "penumbra." There is no right to deprive an unborn human life of its right to life without due process of law.

Anthony Brancato
Anthony Brancato

But there were liberal Republicans back then - and not only conservative Democrats, but liberal Democrats who were pro-life: Congressman (and future governor of New York) Hugh Carey, for example, advocated LIFE IMPRISONMENT WITHOUT POSSIBILITY OF PAROLE to BOTH parties to every abortion (Carey stridently opposed the death penalty, which he would veto multiple times as governor) - yet Carey was rated as one of "the most extreme liberals ever to serve in Congress" by the American Conservative Union at the time the Roe v. Wade decision was handed down.

Richard Phillips
Richard Phillips

If the friggin men won't wear friggin rubbers then friggin women shouldn't spread their friggin legs

Rick Garcia
Rick Garcia

thats when both parties respected each other

Brent Armstrong
Brent Armstrong

"Mostly a myth"? BS!! Roberts practiced it, when he ruled that Obamacare was Consitutional, and he went so far as to modify the Constitution in his ruling!

HughMcgillivray
HughMcgillivray

You lie as much as those turds in the Republican Primary!

Carol Bonati
Carol Bonati

When that was made into law, it was a good thing for women. Before that, women had to go to 'back alley abortionists' and sometimes died, I for one was for that...it was a necessary evil because women didn't have control over getting pregnant, no birth control pills back then, and the friggin' men wouldn't wear rubbers...this was at a time way before they ever even thought of using fetus' for experiments, and it was also done with the woman first found out she missed her period, not weeks and weeks later.

Gram Slohcin
Gram Slohcin

Judicial Activism ? What? Dec.10, 2015.... "Supreme Court.Justice Antonin Scalia said, “There are some who contend that it does not benefit African-Americans to get them into U.of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well … I’m just not impressed by fact U.of Texas may have fewer [black students]. Maybe it ought to have fewer.” ..."

Christine Bailey
Christine Bailey

Actually the Republicans back then believe the government should NOT be involved in our bedrooms. Abortion is a moral decision between a women, her Doctor and her God. that she must live with for the rest of her life.

Anatole Evans
Anatole Evans

No federal and state courts have been stacked with fascist pigs! It's an all pro-corporate agenda!!! Anyone not shouting about our corrupt and broken political system is part of the problem! When I see HRC smile and pay lip service to what Bernie Sanders has been fighting his whole political career it makes my blood boil! Clinton's done more damage to black families than the KKK! Do your home work on the private prison industry and the get tough on crime legislation and the resulting militarization of the police! HRC and Bill Clinton as guilty as sin!!! I think the notion that congress will work in harmony with HRC has been completely dispelled! Yes I think that revolution is going to be necessary!!! Without a revolution nothing changes! Question is who is energizing voters! Who is growing the voter base? Who will turn out young voters? Who will get voters out that traditionally don't vote? Who is getting the independent vote? By far Bernie Sanders is the best hope for meaningful change and HRC is the best candidate for more status quo and republican obstruction! Look at the polling trajectory of where Sanders started and how far HRC has fallen! Amazing and totally missing from the discussion! Hillary Clinton is asking us to believe the corrupting influence of money does not change congressional bills and votes! She is asking us to believe the one percent are spending billions in lobbying for no reason! If you are buying this I got some things I would like to sell you!!! Yes the media blackout is in full effect! Check out Trump coverage Vs. Sanders!!! Guns and abortion! Keeping the people distracted and stuck on stupid! Divide and conquer! Only rich lives matter? Stand up to Hill first!! Trump is next! About as fair and balanced as the Corporate media! Feel the Bern! The two party system has been playing the same game for forty years! The only ones benefiting and getting what they want is the one percent! Just a trending news story brought to you by repetition creates reality inc. Also brought to you by just ignore Bernie Sanders inc. Not all that different from how Bill Cosby handled these questions! Bill Clinton is just a much better liar! Check out the list of allegations and the number of women making them! I believe victims and I don't trust the Clintons! Bill Clinton and Bill Cosby used power, intimidation, and a persona larger than life to silence a lot of women! Just wrong! Rape was part of the allegations and money was paid out! How many women need to come forward before we believe them? HRC is enabler in chief!

Terry L Johnson
Terry L Johnson

Everyone knows that, that was when the term RINO began and abortion was a factor.

Steve C Wixson
Steve C Wixson

Marvin Gardens nothing will change until we take the money out!

Marvin Gardens
Marvin Gardens

Yup. But he is bright enough to sucker these folks, big salary or not, into making things happen. Whether or not he actually does the work, the "success" is his. The office of President works the same way. I am not pro Trump. I am just anti business as usual from either side of the Congressional aisle.

Rick Wingate
Rick Wingate

Marvin Gardens tRump has "people" that do the real work making "Deals" happen. He shows up on signing day and claims all the work as his own. He pays the people he can claim their work. CEOs do it all the time. That's one reason for yoooouge exec salaries, to keep their mouths shut. Baaahahahahaaaa.

Rick Wingate
Rick Wingate

When religion get's into state it quickly takes control. Sad fact, Religion has become a competition. They all wanna be number one. A foot in govt will do wonders in the contest.

Rick Wingate
Rick Wingate

That wasn't about marriage it was about equal rights. If ONE citizen can all can no matter the right. Substitute "right to assemble" for marriage. AND marriage isn't mentioned in the Const much less defined by it. But politics got involved. It became a photo op issue. Every nut had a say with some Pol beside them pushing a personal agenda. Rouse the rabble. Give the bored something they can cheer for that they can do from the couch. Like sports.

Chris Johnson
Chris Johnson

Wow! This confirms to me that "Independent Voter" is a Leftist front.