An Examination of Substantive Due Process and Judicial Activism 11-17-12

The Federalist Society closed its 2012 National Lawyers Convention with Showcase Panel IV.
After it became clear at the oral argument the health care mandate law might be in trouble, President Obama suggested that the Justices would be engaging in judicial activism if they overturned the law. This is a particularly high profile example, but charges of judicial activism have been a key part of the discussion of the role of the courts for quite some time, in earlier times from people generally identified as conservatives, but more recently by liberals and progressives. Is there real meaning to the term? Would the term apply to overturning the Affordable Care Act? The Defense of Marriage Act? The three most common ways of understanding judicial activism are that it refers to when judges invalidate legislation, when they do so based on their individual preferences rather than the requirements of the Constitution, and when they overrule a prior precedent. This panel will consider these various possibilities as well as whether the term continues to be a useful one.
--Prof. Steven G. Calabresi, Northwestern University School of Law and Chairman, The Federalist Society
--Hon. Walter E. Dellinger, III, Partner, O'Melveny & Myers LLP, Duke University School of Law and former Acting U.S. Solicitor General
--Prof. Nelson R. Lund, Patrick Henry Professor of Constitutional Law and the Second Amendment, George Mason University School of Law
--Mr. William H. "Chip" Mellor, President and General Counsel, Institute for Justice
--Prof. Mark V. Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
--Hon. J. Harvie Wilkinson, III, U.S. Court of Appeals, Fourth Circuit
--Moderator: Hon. Edith H. Jones, U.S. Court of Appeals, Fifth Circuit

[@fishermanfinder7198]

The first law the people's are free from invasion of government has no authority but commercial Any law that enter interest of people's life your way of belief That why the court having problems

[@polaiewe]

Amazing debate! It really highlights the problems of judicial activism in light of the recent decision on Roe. However, while I completely understand Justice Thomas's Roe concurrence regarding substantive due process I find it hard to swallow that without it the state could use any process to deprive one of their rights. The way I understand it Substantive Due Process is more of a redundancy than an oxymoron.

[@michah321]

I think it's fundamentally un American to believe out of hand that ANYONE, and the legislators as an extension, has the right to tell a human being what they can do with their own body. The court made a good call that viability is sensible because now a separate, autonomous person exists. But it's way too cumbersome to be use abortion as the benchmark. It's absolutely NO ONE's business what people do in their sexual relationships, if they practice contraception, or who they marry. Anyone who argues that it's their business what someone else chooses in this regard should listen to how absurd they sound and ask themselves, is that REALLY the world you want to live in or what embodies the freedom we identify with as Americans.