Judicial Activism

Every time the right bemoans the state of affairs with the judiciary, two words, "Judicial Activism" pass their lips incessantly. It is the buzz-word(s) they have for any ruling they feel derails legislation and instead establishes some form of standard short of the original legislation, but without the full repeal of the original.

Notwithstanding that this kind of interpretation of what is permissible within a law, and what isn't, without full repeal, is exactly what the founding fathers intended, the ultimate irony is that when determining the number of votes where the court rolled back legislation in favor of a different, un-enacted standard, the hands down leader is Clarence Thomas, followed by the now-deceased William Rehnquist.

Last week, however, the true(r) colors of the right and right-wing appointees to the judiciary (on the Supreme Court), showed through loud and clear. All four of the conservative justices, Thomas, Scalia, Alito, and somewhat shockingly, Roberts, voted to allow the military and the administration to setup 'extra-legal' prisons, outside the review of any court, any where, in the interests of public safety. They held that the body of the Constitution shouldn't be enforced on US soil, as long as the soil wasn't actually physically resident on the US (similar to embassy soil). At no time in our nation's past has such 'location' been a determining factor in applicability of the Constitution.

Further, they held that habeaus corpus, the paramount and pre-eminent crown jewel of our Constitution, the one that established the basic principals in stark and unwavering terms, that the government, no matter what the circumstance, cannot inflict itself improperly upon the rights of the people - they held that such provision doesn't matter in times of crisis. The majority, to their credit, basically said what all of us out here in little, old common sense land felt, namely, "if we do not uphold the Constitution in crisis, then what good is it? What good is our word?" Moreover, the situation at GitMo is hardly a crisis. Antonin Scalia's caterwauling and fear-mongering (that this decision will lead to American deaths) does not justify flagrant violations of foundational ethics. EVERY decision of SCOTUS (virtually) has wide-ranging impacts, including the potential to lead to deaths, but it is the adherence to good ethical principal, not the abandonment of it, which reduces the likelihood of those deaths.

In this case, as the following link highlights: http://www.cnn.com/2008/US/06/23/gitmo.chinese.muslim/index.html, I think the four conservative members knew full well what the legal community has known by and large for six years, but was waiting to act on until a definitive ruling was made. The ruling in the link identifies just how strongly the legal community as a whole, feels this injustice must cease NOW!

Scalia, Alito, Thomas and Roberts, I suspect, KNEW that their position had no legal foundation, that our conduct in GitMo was completely in opposition to the Constitution, completely in opposition to good legal thinking, completely in opposition to good conduct. The Constitution isn't a suicide pact, but actually providing proof of guilt, providing a reason to incarcerate someone, is the ethically PROPER thing to do. Incarcerating someone for six years, without evidence, based on the highly suspect word of an Afghani warlord who got paid $5000/head to say it, is the utterly WRONG thing to do, and those who would vote to continue such an abhorrent approach, are the TRUE activists. They voted for politics first, truth, integrity and upholding the Constitution got zero.