“Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”[...]
“And I’d just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said.
“Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step,” he said.
Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. “Judicial activism” is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary.
Credited with writing several feminist precepts into U.S. constitutional law based on the spurious notion that our Constitution is a “living” (i.e., re-interpretable) document, she now wants to expand that process to welcome foreign law.
Taking a gratuitous swipe at her Supreme Court colleagues who have spoken out against citing foreign law [...] , Ginsburg said, “Why shouldn’t we look to the wisdom of a judge from abroad?” Any first-year law student should be able to answer that question: because all judges, before donning their black robes, raised their right hands and swore “to support this Constitution.”
Ginsburg even deplored U.S. failure to cite the Canadian Supreme Court. She failed to mention its judicial activism in legalizing same-sex marriage.
Ginsburg claimed that our failure to cite foreign decisions has resulted in diminished influence for the U.S. Supreme Court. Most of us can think of many other reasons why judicial activism is deplored by Americans.