| | Judicial activism should not be confused with the courts' [[United States Constitution|Constitutionally]] mandated rule in enforcing [[limited government|limitations on government power]] and preserving the Constitutional structure of government, as they did in ''[[Bush v. Gore]],'' ''[[Boy Scouts v. Dale]],'' and ''[[D.C. v. Heller]],'' and as the [[Supreme Court of the United States]] should have done with [[ObamaCare]]. | | Judicial activism should not be confused with the courts' [[United States Constitution|Constitutionally]] mandated rule in enforcing [[limited government|limitations on government power]] and preserving the Constitutional structure of government, as they did in ''[[Bush v. Gore]],'' ''[[Boy Scouts v. Dale]],'' and ''[[D.C. v. Heller]],'' and as the [[Supreme Court of the United States]] should have done with [[ObamaCare]]. |
| − | Judicial activism rarely has a positive impact. Some cite ''Bolling v. Sharpe'', the companion case to ''[[Brown v. Board of Education]]'', which desegregated schools in [[Washington, D.C.]] as an example of beneficial judicial activism. The [[Equal Protection Clause]], which was cited in ''Brown'', does not apply to the [[District of Columbia]], only to the States. However, the Supreme Court unanimously ruled that segregated schools in the city were still unconstitutional because it was also a violation of the [[due process]] clause of the Fifth Amendment. Although the impact was clearly desirable, the due process clause typically only applies to legal processes such as criminal trials, not to segregation. Also, the same result could have been achieved simply by an act of Congress, since they have control over the District's school system. Legal scholars Cass Sunstein and Randy Barnett agreed in a debate that it was hard to reconcile the ruling with the Constitution, in spite of its positive impact.<ref>[http://legalaffairs.org/webexclusive/debateclub_cie0505.msp]</ref> These rare cases are considered to be among the hardest for the Supreme Court to decide. | + | Judicial activism rarely has a positive impact. Some cite ''Bolling v. Sharpe'',<ref>Justice [[Clarence Thomas]] would overrule ''Bolling v. Sharpe'', because it reflects [[substantive due process]] without any textual basis. ''See'' his concurring opinion at pp. 9-23 of [https://www.supremecourt.gov/opinions/21pdf/20-303_6khn.pdf].</ref> the companion case to ''[[Brown v. Board of Education]]'', which desegregated schools in [[Washington, D.C.]] as an example of beneficial judicial activism. The [[Equal Protection Clause]], which was cited in ''Brown'', does not apply to the [[District of Columbia]], only to the States. However, the Supreme Court unanimously ruled that segregated schools in the city were still unconstitutional because it was also a violation of the [[due process]] clause of the Fifth Amendment. Although the impact was clearly desirable, the due process clause typically only applies to legal processes such as criminal trials, not to segregation. Also, the same result could have been achieved simply by an act of Congress, since they have control over the District's school system. Legal scholars Cass Sunstein and Randy Barnett agreed in a debate that it was hard to reconcile the ruling with the Constitution, in spite of its positive impact.<ref>[http://legalaffairs.org/webexclusive/debateclub_cie0505.msp]</ref> These rare cases are considered to be among the hardest for the Supreme Court to decide. |