The Abortion Argument We Missed

[Big Papa Goat]

The problem with judicial activism like this is of course that it circumvents democratic politics. The beauty of a good democratic system is that no one group representing any one viewpoint can have its values imposed on the rest of society without compromising with other groups representing opposing viewpoints. That way, in a healthy democratic system, no one ever gets really alienated or oppressed, or subjected to government actions entirely against their beliefs or interests. In that sense, judicial activism is a bad thing, since judicial rulings have a tendency to make things a bit black and white. Dissenting opinions by Supreme Court justices, while academically interesting, don't really cause the ultimate decision of a court to be compromised, unless I'm mistaken. At least, thats how things have seem to have gone in Canada since the 1982 Charter of Supreme Court Supremacy. I might be wrong on a few of those points, but what I'm trying to say is that democracy allows for compromise, while judical decisions make things black and white, legal and illegal, right and wrong, and that makes for alienation and oppression, since the 'wrong' party is denied the moral, legal and political standing to redress their situation. Also, their views are for all practical purposes ignored when a decision is made that goes against them.

That being said, issues like abortion, gay marriage, and other such religiously contreversal issues sometimes don't lend themselves very well to compromise or democratic decision making. There are a few reasons for this, one of which is views on such issues are usually polarized, limiting the capacity for compromise, and making the competition between groups representing different views a little bit intense for peaceful democratic discourse. Another big problem is that issues based on religion or othersuch serious matters often involve disputes of foundational, high-order values. For instance, although it might be argued that this is not always the form of the abortion debate, a person who believes that God is telling him that abortion is wrong will have no common ground in a debate with a person who has no such belief in God, and holds individual liberty (say) as their highest value. Compromise is difficult in such a debate since neither party can be expected to seriously tolerate the other parites values being put into practice in any way, since the polarization between the values of the parties involved prevent make the debate represent a zero-sum conflict. Either party would have to compromise their own values to allow for the other parties values to be represented in the government.

Basically, you didn't really need to read the above bullshit, since it's basically just giving some nominally coherent theoretical reasons for what everyone already knows, people that disagree strongly can't get along. What makes that important for this issue is that while the undemocratic nature of judicial activism has its problems, democratic politics are not ideal for soving such issues either.