“Judicial Activism” Defined
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done today. – Antonin Scalia, Boumediene v. Bush, (dissenting)
What in the world is a ‘moderate interpretation’ of the text? Halfway between what it really says and what you want it to say?
It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.
What ‘we the people’ want most of all is someone who will agree with us as to what the evolving constitution says.
We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands. – Antonin Scalia, excerpts from a speech quoted in the New Orleans Times-Picayune, 3/10/04
Something has gone seriously awry with this Court’s interpretation of the Constitution. – Clarence Thomas (dissenting) Kelo v New London (2005)
I keep saying that “Claire Wolfe Time” passed us by a long time ago.