Let's drum up some interest...

Since I was driving in last night for my grave-shift at the casino, I have heard nothing but discussion after discussion about the California Supreme Court decision to overturn a 2000 referendum vote making same-sex marriages illegal.

Obviously, the left-leaning stations are dancing with joy, while the conservative stations and programs are crying foul. For 5+ hours of radio listening, I have heard Hannity, Wilkow, Levin, and Bennett complain about "activist" courts legislating from the bench.

In fact, I've heard the term "activist" used describe Supreme Court justices that have made many questionable decisions today. The Burger Court's decision in Roe vs Wade is the biggest, but the current Robert Court's upcoming decision about D.C. vs Heller case over the District of Columbia's gun ban is another.

This is particularly important as Ryan just recently read me the riot act about the importance of voting for President's that choose "conservative" justices. So, let's look at some of the most "activist" decisions made in history and see what happens, shall we?

Since 1953, the United States Supreme Court has been led by GOP-appointed Chief Justices... Warren, Burger, Renquist, and now Roberts. That's 55 years of "conservative" leadership from the bench. At no point in the last 35 years has there ever been a majority of justices appointed by Democratic Presidents. Not once. Yet, these are the Courts that have handed down the most "activist" decisions in our lifetime.

Let's look further back, and find the decisions of the "constructionist" Courts. In 1853, the Taney Court decided 7-2 that African Americans were "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." This came from a Supreme Court that, excluding this decision, is still seen as the MODEL of constructionist judicial action. In 1896, the Fuller Court decided in Plessy vs Ferguson that "separate but equal" was not discrimination under the Fourteenth Amendment... and that decision was 8 to 1.

As much as I am against the ruling in Roe vs Wade, I can't deny that the patently "activist" decision in Brown vs Board of Education (which overturned the Plessy v. Ferguson decision) not only determined that "separate but equal" IS discrimination, but also was the RIGHT determination. The Warren Court also made landmark "activist" decisions in Mapp v. Ohio and Miranda v. Arizona (you guys can look those up yourselves). These decisions flew in the face of popular referendum law, and determined that States had, in some manner or way, abridged the rights of citizens.

That is the definition of the Court's role, isn't it? To stop the infringement of individual rights by the Government. The Taney Court failed at this in Dred Scott, as did the Fuller Court in Plessy. I do not deny that the Burger Court failed in Roe v. Wade too... let's be clear there.

My question is where does this leave us in regards to "activist" versus "constructionist" benches? How does this stand in the eyes of those looking to base their voting choice on the possibility of a Presidential appointment to the Court?