Thursday, April 9, 2009

Can Judges Be Tyrants?

So, I'm returning to these old digs to promote a unique piece on which I'm the co-author over at the League of Ordinary Gentlemen. The piece is a conversation between one of the newest members of the League and myself over the Iowa gay marriage decision and, in particular, over the ability of the courts to avoid weighing in on controversial social issues.

Will and I are particularly proud of the whole piece, which we think has a unique format that illuminates a lot of issues involved in discussions of judicial activism. I beg anyone still reading this site to go check it out (oh yeah - and if you haven't yet, please add the League to your RSS feed).

Here's a little teaser. For the whole discussion, please take a few minutes and read the whole thing - I promise you won't be sorry:

Me: “original intent” is impossible to divine (indeed, the champion of originalism, Justice Scalia, is also the foremost critic of “original intent” - he just doesn’t realize that much of what he does is little different). The legislature doesn’t act in a vaccuum, and it can’t be the responsibility of the courts to correct the legislature’s mistakes, no
matter how unforseeable those mistakes may have been. To do so would be to read words into the legislation/Constitution that aren’t there, and would in fact be a very real case of “legislating from the bench.”

Will: Here’s my big point: The courts have a certain amount of judicial capital - i.e. public trust in the courts as an institution. This gives them the credibility to enforce unpopular laws (releasing guilty criminals on technicalities, for example). Court capital, however, is extremely sensitive to public perception, and if it is completely depleted, popularly elected branches of government will take advantage of this
erosion of public trust by compromising judicial independence - through court-stripping, enacting judicial term limits, slashing the courts’ budget etc. - thereby undermining the judiciary’s ability to enforce constitutional law.