sheer potentiality

Otherwise known as “legislating from the bench”:

I got into it on Slashdot again, someone claiming that the Constitution is “threatened by the Justices behaving like philosopher-kings finding new “laws” in the Constitution that the oafs in Congress should’ve passed (practice often derided as “legislating from the bench”)”. I have decided to post my reply (in an edited form) here.

People who complain about “judicial activism” or “legislating from the bench” remind me of whiny sports fans who blame the refs every time they lose a game. If a court ruling goes their way, no complaint. If a court ruling goes against them, it’s “judicial activism”.

First off, let’s be perfectly clear on one thing–most law in the United States is case law, i.e. law that is made by the precedent of judicial rulings. This allows the law to grow organically from case analysis rather than simply being handed down from Congress every so often. This is a vital feature of the system of common law we inherited from Great Britain, so if you have a problem with it, take it up with them. It’s also an inescapable consequence of stare decisis, the doctrine that future courts will rule according to the precedents set by past courts. But for stare decisis, court rulings would be unpredictable and arbitrary.

Having a strong judicial branch with the power to strike down what Congress and the President do also protects us from the tyranny of the majority. The civil rights rulings of the 1960’s are a perfect example of this–the “will of the people”, the laws Congress did pass, all this stuff you people claim is trampled by judicial activism, were in this case part of a horrifically evil system that oppressed people for no reason other than their racial origin. It was the Supreme Court, upholding the principles of the Constitution, which stopped this. For all your complaining about how the will of the people is subverted, you fail to recognize—quite often, when the “will of the people” is to restrict human rights, it needs to be subverted.

I’m not saying the Court never makes bad rulings–they clearly do, particularly in cases like Kelo. But majority rule makes bad decisions far more often, and it’s vital that there be some way to put majority rule in check in situations where it is clearly acting unjustly. And that will necessarily involve overturning what Congress and the President do from time to time.