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Activist Judges May 3, 2010

Posted by Dwight Furrow in Dwight Furrow's Posts, politics.
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If the public discourse regarding Supreme Court nominations is an indication, most people believe that judges ideally make their decision based on the law, rather than personal ideology.

I think there is little evidence for that; judges tend to consult their personal ideology and moral intuitions first and then interpret the law so that the interpretation conforms to their personal beliefs.

An obvious example of this emerged in a decision last week in Salazar v. Buono. The Supremes were considering a deal, approved by Congress, to transfer the acre of land on which a cross commemorating war dead stands to private hands.   Five conservative justices approved.

A badly fractured Supreme Court, with six justices writing opinions, reopened the possibility on Wednesday that a large cross serving as a war memorial in a remote part of the Mojave Desert may be permitted to remain there.

The 5-to-4 decision provided an unusually vivid glimpse into how deeply divided the court is on the role religious symbols may play in public life and, in particular, the meanings conveyed by crosses in memorials for fallen soldiers.

In considering the virtues of this deal, the majority opinion stated that the Christian cross isn’t necessarily a symbol of Christianity.


Justice Paul Stevens in his dissenting opinion pointed out the problem:

“Making a plain, unadorned Latin cross a war memorial does not make the cross secular. It makes the war memorial sectarian.” He added, in a dissent endorsed by Justices Ginsburg and Sotomayor, “The cross is not a universal symbol of sacrifice. It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith.”

I know of no other religion in which the cross is a symbol of sacrifice. To claim that it is universal is transparently dishonest and  will find its place among most of the other transparently dishonest rulings made by this conservative majority.

book-section-book-cover2 Dwight Furrow is author of

Reviving the Left: The Need to Restore Liberal Values in America

For political commentary by Dwight Furrow visit: www.revivingliberalism.com



1. Paul J. Moloney - May 4, 2010

Some so-called Christians depend on the state to support their Christianity rather than the God in which they are suppose to believe. Any Christianity supported by the state is Christian in name only.

2. Asur - May 4, 2010

Judges do make their decisions based on law — however, not every situation (that is, event + context) clearly falls within existing law.

Here, two things are true: 1) Complete objective standards for a decision are lacking, and 2) A decision must be made. Hence, the gap is bridged by the subjective interpretation of the judge.

I don’t see how this process is surprising, let alone alarming.

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