the seed that Obama planted in his statements was to attempt to redefine "judicial activism" as SCOTUS acting within it's authority to strike down a law(that he happens to desire) that it finds Unconstitutional....as usual..turning logic on it's head
Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."
the activist judges that the right have railed about for years are judges that legislate from the bench and attempt to create public policy and even law, often with the approval of law makers and these have tended to be liberal minded judges who do not feel constrained by the Constitution or any limits placed on their office. There are countless examples.....
the ultimate decision will be that of some number of judges ruling based on the Constitutionality of the law and it's mandates which is prefectly within their purview and the other number of judges "will allow their personal views about public policy, among other factors, to guide their decisions" disreguarding any obvious conflicts with the Constitutional boundaries placed on the Federal Government and preferring to assist in creating public policy and law clearly outside of those boundaries....there is little argument that the 4 liberal minded "activists" on the court will vote in lock step because they either do not feel constrained by the Constitution or they will "find" something in the Constitution or point to precedent that will support their public policy beliefs....(perhaps, in the case of Justice Breyer, he will point to some precedent in "foreign law" or among the "
positive liberties"
not yet defined in the Constitution..there it is again....to support his notion)
The second Berlinian concept – to Berlin*, "positive liberty" – is the "freedom to participate in the government;" In Breyer's terminology, this is the "active liberty," which the judge should champion. Having established this premise of what liberty is, and having posited the primary importance of this concept over the competing idea of "Negative Liberty" to the Framers, Breyer argues a predominantly utilitarian case for judges making rulings that give effect to the democratic intentions of the Constitution.
*Isaiah Berlin (Latvia/United Kingdom, 1909–1997) is most famous for his attempt to distinguish 'two conceptions of liberty'. Berlin argued that what he called 'positive' and 'negative' liberty were mutually opposing concepts.
Positive conceptions assumed that liberty could only be achieved when collective power (in the form of church or state) acted to 'liberate' mankind from its worst aspects.** These, Berlin felt, tended towards totalitarianism. Negative conceptions, by contrast, argued that liberty was achieved when individuals were given maximal freedom from external constraints (so long as these did not impinge on the freedom of others to achieve the same condition).
** you should also investigate how this relates to Liberation Theology and "Collective Salvation"... with regard to this President
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