That's not the right characterization of the argument. Judges are there to tell legislators that they can't make certain laws. The abortion dispute is not about judges making abortion legal, it's about judges telling politicians that they cannot make abortion illegal. Without that, politicians would literally have the ability to do anything they want.
It should concern everyone that these types of top down authoritarian mentalities are more prevalent as people without a tradition or culture based in western philosophy that has led to what used to be a clear separation of powers, become more prominent even all over the western/European based world.
It will not end well for most of humanity, even in this community, regardless if how much we believe ourselves to be doing good here, or at least not even considering the destabilizing consequences of what we do here.
I think you are wrong here. We, the people with “lived experience” in authoritarian countries, look with astonishment at how the American people dismantle the basics of their own political system “based in western philosophy”.
You know, Stalin’s constitution of 1936 was one of the most liberal and progressive at the time. Then 1937 came. So the suggestion that judges should stop looking at the code of law and just eagerly follow the Party line - produce cries of “danger” from my very own carbon-based neural network.
So my estimate is quite opposite - the “native” Americans took the benefits of the political system based on western philosophy so much for granted, that they’ve stopped thinking where these benefits were coming from.
Do tell, what people specifically are you referring to?
Look at how the 2nd Amendment basically does not exist for some of the most populous states because SCOTUS refuses to reign in the more egregious examples of judicial/legislative reacharound like Wickett v. Filburn, or the vast majority of firearms legislation in places like NY and California.
Roe v. Wade is a shining example of how legalism can get turned on it's head just by changing out the authoritative judge who has the last word, or a new case coming up and being heard that threatens a change in viewpoint of SCOTUS.
The Writ of Certiorari is in my opinion the most overpowered political lever in the entire U.S. in the negative sense in that it's not being granted robs millions of an opportunity for redress of real harms, and in a positive sense in that when it is granted it can completely alter the judicial landscape for decades without legislative action.
These right declarations aren’t super clear so the political leanings of the court weight heavily.
9th Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people
10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Constitution does not define rights, rather it defines the limits of the government's power to abridge those rights.
It's frightening that so few seem to really get this.
The judicial is there to decide if a given law should be enforced (and if a given enforcement method is valid)
This is why I’m not a big fan of originalism: that is almost always a subjective decision.
Otherwise we would just have a legislative and an executive.
The Executive is there to implement an enforcement mechanism, even if the decision os to implement a null mechanism.
The executive cannot (or normatively should not ex nihilo) just materialize enforcement infrastructure without Congressional approval. The existence of Administrative law, however, rather shopts down the original intent of the Founders in terms of Governmental architecture.