It has always been my understanding that “judicial activism” is a term applied to actions of courts that are not found in the original laws they are “interpreting”; done for the purpose of promoting their own personal philosophies.
It is my impression that Marshall was that sort, at least when it came to abortion.
But, as has been pointed out, Marshall isn’t up for confirmation, Kagan is. Also, as some have pointed out, Kagan is going to be confirmed no matter what, because Democrats control the Senate. It does not seem inappropriate to me for senators who do not share Marshall’s pro-abortion philosophy, to inquire concerning Kagan’s…not because they stand any chance of defeating her confirmation, but simply to inform the public what she (and therefore Obama) actually is. Most people on CAF, I think, know how pro-abortion this administration is, and that Obama will never appoint a prolife justice to the Supreme Court because of it. Still, not everyone in the country knows it, and there’s nothing wrong with Repub senators pointing it out.
The following I purloined from the first article that popped up when I goodled “Thurgood Marshall” & “abortion” together. It seems to me Marshall was, when it came to abortion, simply promoting his own philosophy and was, therefore, engaging in pro-abortion “judicial activism”.
"AUL cites Marshall’s four dissenting opinions in cases following Roe v. Wade as indicative of the kind of justice Kagan would be if the Senate confirms her to replace retiring pro-abortion Justice John Paul Stevens.
In the 1977 companion cases of Beal v. Doe and Maher v. Roe, the Supreme Court held that state funding restrictions on the use of Medicaid funds for non-therapeutic abortions was constitutional.
“Justice Marshall, on the other hand, felt the denial of funds for abortions amounted to a violation of Equal Protection under the Fourteenth Amendment,” AUL noted. “Justice Marshall not only believed that legalized abortion was constitutionally required, but also that the Fourteenth Amendment mandated that states pay for abortions.”
Next, in the 1980 case of Harris v. McRae, a case argued by Americans United for Life before the United States Supreme Court and in which the Court upheld the constitutionality of the Hyde Amendment, Marshall also argued that the amendment to prevent HHS from funding abortions with tax dollars was unconstitutional under the Fourteenth Amendment’s Equal Protection Clause.
Marshall stated that “denial of a Medicaid-funded abortion is equivalent to denial of a legal abortion altogether.”
AUL also points out a 1981 case, H.L. v. Matheson where Marshall dissented in a parental notification case that was decided on another issue.
“With respect to minors, the court and Marshall acknowledged that the state could restrict abortion, but Marshall thought parental notification laws did not pass even ‘rational basis’ scrutiny,” AUL said.
Marshall claimed the state did not have a “legitimate interest” in protecting the rights of parents to know when their minor daughter is considering an abortion.
And in the 1990 case of Hodgson v. Minnesota, Marshall dissented in a parental notification case in which the Supreme Court approved a “judicial bypass option” as well as a 48-hour delay requirement for a minor to get an abortion.
“Marshall argued, contrary to the Court, that no part of the Minnesota parental notification requirement was ‘even reasonably related to a legitimate state interest,’” AUL explained. “Even Justice John Paul Stevens acknowledged that notification of only one parent and a 48-hour waiting period were reasonable restrictions on abortion.”
AUL says it is a concern that Justice Marshall, of whom Kagan thinks so highly and for whom she clerked “believed that abortion is an unrestricted fundamental right, and did not uphold reasonable state restrictions.”
“In addition, Marshall was in favor of using the Equal Protection clause to force taxpayers into paying for abortions because abortion offered “an escape” from poverty and racial injustice,” AUL said.