The problem with Roe and the Theory of the Governance Imperative

With Roe, the courts acted before the abortion issue was ripe. The Supreme Court felt the issue was in Stage 4 long enough among enough people that they felt it was time to act to release the public pressure. A counter example might be the Child Online Protection Act (COPA). When they declared the law unconstitutional, the courts (rightly or wrongly) were doing what they are constitutionally mandated to do - invalidating laws that are unfair applications of power. But Congress reacted as if the issue of indecent content was in Stage 4 when the issue had not achieved a critical mass among the population. Because of this, it appeared that Congress was embroiled in partisan politics.

Another thing can be said about this. Almost all highly-charged partisan battlefields might be around issues that are in this same state, where one of the branches is out of sync with the people. If the branch lags the people as the Supreme Court did with segregation, you get the Civil Rights Movement. If the branch is ahead of the people, you get Roe (in the case of the Supreme Court) or COPA (in the case of Congress).

True judicial activism is not to be found in decisions like Lawrence or the flag burning decisions. Judicial activism is to be found in decisions like Plessy and Roe where the courts begin bleeding into the domain of the legislature and created rights that were not mentioned in the Constitution. Contrast this with the Terri Shiavo case. Although the judicial activism term was thrown around quite readily, the courts were very measured in their response. They never created law out of thin air, while Congress tried to become the arbiter of what the law meant under the guise of changing the law. What is surprising is that no one accused Congress of violating the Constitutional ban on ex post facto laws. This is congressional activism.

So this all leaves us asking a few questions:

• Has this governance imperative theory been discussed before? If so, has it been limited to the intelligentsia in the Ivory Tower?


• Are we really the first ones who have uncovered the relationships here? Are we the first to ask the question "What's the underlying cause behind the charge of judicial activism?" Either the people don't understand the role of the courts, or the courts really are out of sync.