(07-11-2018 12:50 PM)georgewebb Wrote:  It bears remembering that the classic and most consequential example of "liberal" judicial theory is the infamous Dred Scott decision, in which Chief Justice Roger Taney tried to short-circuit an ongoing political debate by declaring constitutional status for an individual "right" (in that case, the "right" to own slaves) which, while vociferously demanded by a minority of the population, was not expressly protected by the Constitution. The vocal minority was adamant that the "right" they sought must not be left to the political branches or to state-by-state policy-making or to the difficult process of Constitutional amendment, but must instead be declared by universal fiat, once and for all. Taney obliged, and that tragic decision help cause nearly a million deaths. Many of the opinions of the "liberal" justices are direct intellectual descendants of Taney and Dred Scott.

In 1984, Judge Ruth Bader Ginsburg (then on the D.C. Circuit) offered the following observation on Roe v. Wade:

"In 1973, when Roe issued, abortion law was in a state of change across the nation. There was a distinct trend in the states, noted by the Court, 'toward liberalization of abortion statutes.' Several states had adopted the American Law Institute's Model Penal Code approach setting out grounds on which abortion could be justified at any stage of pregnancy; most significantly, the Code included as a permissible ground preserva- tion of the woman's physical or mental health. Four states -- New York, Washington, Alaska, and Hawaii -- permitted physicians to perform first-tri- mester abortions with virtually no restrictions. This movement in legislative arenas bore some resemblance to the law revision activity that eventually swept through the states establishing no-fault divorce as the national pattern.

...

"...in my judgment, Roe ventured too far in the change it ordered. The sweep and detail of the opinion stimulated the mobilization of a right-to-life movement and an attendant reaction in Congress and state legislatures. In place of the trend ‘toward liberalization of abortion stat- utes’ noted in Roe, legislatures adopted measures aimed at minimizing the impact of the 1973 rulings, including notification and consent requirements, prescriptions for the protection of fetal life, and bans on public expenditures for poor women's abortions.

"Professor Paul Freund explained where he thought the Court went astray in Roe, and I agree with his statement. The Court properly invalidated the Texas proscription, he indicated, because '[a] law that absolutely made criminal all kinds and forms of abortion could not stand up; it is not a reasonable accommodation of interests.' If Roe had left off at that point and not adopted what Professor Freund called a 'medical approach,' physicians might have been less pleased with the decision, but the legislative trend might have continued in the direction in which it was headed in the early 1970s. '[S]ome of the bitter debate on the issue might have been averted,' Professor Freund believed; '[t]he animus against the Court might at least have been diverted to the legislative halls.'

...

"Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. The political process was moving in the early 1970s, not swiftly enough for advo- cates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict."

63 N.C. L. Rev. 375, 379-380, 381-382, 385-386 (1985) (citations omitted)

In the same article, Judge Ginsburg approvingly quotes another judge, Henry Friendly of the Second Circuit, who made a similar observation about another legal issue:

"I can speak with feeling because I was to have presided over a three-judge court before which the constitutionality of the old law was being challenged. Although we had not yet heard argument, I could perceive not merely how soul wrenching but how politically disturbing-and I use 'politically' in the highest sense-decision either way would be. If we upheld the old law, we would be disappointing the expectations of many high- minded citizens, deeply concerned over the human misery it was creating, its discriminatory effects, its consequences for the population explosion, and the hopes of the least privileged elements in the community. These people would never understand that if we held the law constitutional, we would not be finding it good. Indeed, some opponents of reform would have claimed we had done precisely that. If we were to decide the other way, many adherents of a deeply respected religion would consider we had taken unto ourselves a role that belonged to their elected representatives and that we had done what the latter, after full consideration, had refused. If they asked what specific provision of the Constitution was violated by this law of more than a century's standing, we would have had to concede that there was none and that we were drawing on what the Supreme Court has euphemistically termed 'penumbras' to construct a new 'fundamental' right. How much better that the issue was settled by the legislature! I do not mean that everyone is happy; presumably those who opposed the reform have not changed their views. But the result is acceptable in the sense that it was reached by the democratic process and
thus will be accepted, even though many will not regard it as right."

Id. at 385 n.81 (1985) (citations omitted)

No wonder she and Justice Scalia could be friends!

The full text is at http://scholarship.law.unc.edu/cgi/viewc...ntext=nclr