judicial activism

I'm not so concerned about whether or not the Right or the Left win on their issues; I'm concerned about proper Constitutional interpretation, judicial activism and the "presumption of liberty" vs. the "presumption of Constitutionality" when it comes to judicial review. So, from a liberty-minded perspective, here are some serious questions that should be asked of the SCOTUS nominee that replaces David Souter. (Thanks to my co-worker, Joe Henchman, for help on these.)

ONE: Currently, the Supreme Court takes less than 100 cases per year, leaving many important legal questions undecided. Would you be in favor of increasing your caseload so that many Constitutional disputes can be resolved?

TWO: In the University of Michigan affirmative action cases, Gratz v. Bollinger and Grutter v. Bollinger, it was ruled that while racial quotas could not be set, race could still be used as a factor in admissions. Then-Justice Sandra Day O’Connor said that affirmative action may not be needed in the near future. Do you think it is appropriate for the Court to determine when a policy is no longer necessary?

THREE: The issues of property rights and eminent domain have been somewhat resolved in recent times. Do you believe that Kelo v. New London was decided correctly?

FOUR: The Second Amendment has also been a topic that the Court has recently taken up. Do you believe that District of Columbia v. Heller was decided correctly?

FIVE: There is always debate over the balance between government power and individual rights. When it comes to state laws that allegedly violate individual rights, to what extent should the Court give deference to that state law?

SIX: Since the 1938 decision in United States v. Caroline Products Co., the Court has only enforced equal protection in three specific categories: enumerated rights, protection for minorities and protections in the political process. Is it proper for equal protection to be limited to these categories, and if so, are these categories permanent?

SEVEN: When it comes to Constitutional interpretation, the Court has seemed to adopt “tiers of scrutiny” in various First Amendment, equal protection and other contexts: strict scrutiny, rational scrutiny, intermediate scrutiny, etc. Is it proper for the Court to have different levels of scrutiny for different cases? If so, why?

EIGHT: The federal government influences state policy in many ways by attaching conditions to federal funding. Is there a point at which a condition would be unconstitutional, even though acceptance of funding is at the state's discretion?

June 26, 2008 Washington, DC (AP)

Supreme Court: Individuals don't have right to gun ownership

In a stunning blow to pro-gun forces such as the National Rifle Association, the Supreme Court today upheld the District of Columbia's ban on handgun ownership. In a sweeping 6-3 decision, the Court rejected the position that individuals have a right under the Second Amendment to keep and bear arms.

The majority opinion, authored by Justice Stephen Breyer and joined by Justices John Paul Stevens, Ruth Bader Ginsberg, David Souter, and the court's two newest members, Chief Justice Mario Cuomo and Justice Marsha Berzon, declared that the Consitution "clearly spells out that gun ownership is a right limited to those whom a state decides belong to a well ordered miltia".

The opinion concluded "there is no constitutional obligation for a state to organize such a militia and to the extent it chooses to establish one, whether this militia bans certain weapons is a matter beyond constitutional review"

In a stinging dissent, Justice Antonin Scalia, joined by Justice Clarence Thomas  accused the majority of "emasculating the meaning of the Bill of Rights by permitting the capricious disarmament of law adiding citixens". Justice Anthony Kennedy also dissented in part from the decision, suggesting some gun bans might be overbroad and unjustified.

Liberals and supporters of gun control hailed the ruling, which cemented the ascendancy of the court's liberal wing, augmented by the two recent appointees by President Kerry, Chief Justice Cuomo and Justice Berzon.    In previous decisions rendered this term, the Court authorized those detainees released from the now shuttered Guantamano Bay prison camp to sue the CIA for damages in U.S. courts, declared the federal Defense of Marriage Act unconstitutional, and voided all leases for new U.S.oil drilling as being in violation of the Endangered Species Act.  This followed last year's landmark decision which abolished capital punishment across the United States.

Anticipated to be ruled on next year by the Cuomo court are a challenge to the U.S. immigration statutes as violating the Equal Protection clause of the Constitution, as well as a challenge to Pennsylvania's restrictive abortion statutes.

President Kerry announced his support for the decision upholding the gun ban saying "As far as I know, you can shoot grouse in rural Ohio, but not here in D.C. Effective gun control is how the Kerry Administration plans to fight crime in urban America".  Attorney General  Eric Holder was reportedly planning legal challenges to various gun laws such as "concealed carry" in Florida and other states based on the expected outcome of this case. 

Republican presidential candidate John McCain expressed outrage at today's ruling. Observers believe this was an effort by McCain to rally skeptical conservatives to his camp.

Meanwhile, large celebrations were expected in Cambridge, Berkeley and Aspen to mark the latest milestone in the "new jurisprudence" of the Cuomo court, which liberals have already compared with the Warren Court of the 1960's.

(we were 118,000 votes in Ohio away from this story, folks!)