Comment by benreesman

It can indeed be argued that Roe v. Wade was likewise activist, and it’s a failure of the legislature that a similarly workable compromise couldn’t have been done through proper channels.

But two wrongs don’t make a right and legislating from the bench for a net decrease in individual liberty via overturning a previous ruling runs contrary to the whole premise of stare decis (that’s Latin for “precedent” in case anyone missed that). Ruling from precedent has a lot of good properties, but maybe the best one is that it puts downward pressure on unbounded, escalating bench legislating.

Brown v. Board of Education was arguably overturning Plessy, though that was attached to specific language in the 14th Amendment, which is light-years from endless, muddy, subjective arguments around states rights like with Roe v. Wade. That question was settled by a war fought to a decisive military conclusion: red states don’t get to make draconian laws around individual liberty because we conquered them with guns. States rights “freedom” is subordinate to individual rights and freedoms via the landmark ruling in Union v. Confederacy. When it’s one interpretation of the Combined and Annotated Federalist Papers on one side and the armament of the high-GDP states on the other, well the victors make the laws. It’s a “happy accident” that the victors were on the right side of history.

Citizen’s United is the worst kind of judicial activism: tortured doctrines around corporate personhood being used to overturn a good law with good outcomes with broad bipartisan support (it was called the Bipartisan Campaign Reform Act for Christ’s sake) and it was a popular law that put downward pressure on the power of powerful institutions relative to the individual.

When the language of Locke and Rousseau is used to defend the life, liberty, and egalité of ruthless megacorps and and secessionist governors at the expense of the liberty of the common citizen: that’s Orwell hoss.