[Texasforever]

In the first place, you could have 9 clones of Clarance Thomas on the court and they could not just decide on their own to overturn R v W. They must have a case based on R v W to adjudicate before any action could be taken. That is where true "strict-constructionists" come in. If the case turns on the 10th amendment rights of the individual states to decide the issue then a "strict-constructionist" court would be well within constitutional powers to overturn R v W and send it back to the states. However, if the argument is that abortion is murder and should be banned in all states then it would take an "activist conservative" court to overturn R v W. It may be the right thing to do BUT it would still be judicial activism.

[MJY1288]

Hello Tex, here we go again :-)

Activism on the right is the same as activism on the left. A wrong is a wrong, I just wish more people saw it the way some of here do!

[griffin]

Rino alert? What do you mean it MAY be the right thing to do? Sheesh.

Symbolism over substance, 'eh?

[Texas Federalist]

In the first place, you could have 9 clones of Clarance Thomas on the court and they could not just decide on their own to overturn R v W. They must have a case based on R v W to adjudicate before any action could be taken.

That won't be hard, as soon as an apparent pro-life majority takes hold of the Court, a test case won't be hard to find.

However, if the argument is that abortion is murder and should be banned in all states then it would take an "activist conservative" court to overturn R v W. It may be the right thing to do BUT it would still be judicial activism.

I apologize in advance if I am putting words into your mouth, but it seems that you are implying that it is "activist" for the Court to overturn a legislative enactment. True "activism" is ignoring the original meaning of the Consitution, regardless of whether a law is upheld or overturned. In fact, if you read the opinions from this term, Clarence Thomas voted to overturn laws more than any justice on the Court.

[JCEccles]

However, if the argument is that abortion is murder and should be banned in all states then it would take an "activist conservative" court to overturn R v W.

Homicide as defined by state statutes covers most cases. There are federal laws proscribing homicide in special cases and in areas under exclusive or concurrent federal jurisdiction. A defendant might be tried for murder by both sovereigns for the same act.

On the other hand, there is no such thing as federal common law homicide, and SCOTUS is powerless to create and impose one.

Abortion cannot and will not be declared murder in all the states by SCOTUS decision. That would require audacious judicial legislating of a nature not seen even in the most activist decisions.