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Summarizing Our Debate Over Judicial Review:

I don't know if it's desirable to continue my debate with Orin over judicial power much further. In this post, I will simply summarize some key themes and leave Orin the last word, if he wants it.

As I see it, the main issue under dispute is how much judges should defer to the legislature in cases where they believe that a law it has passed is unconstitutional. In my judgment, no special deference is due. Judges should not give legislatively enacted laws any particular deference and should vote to strike them down in most, if not all, cases where they believe those laws to be in violation of the Constitution. Orin, by contrast, believes that judges should give legislation a strong presumption of constitutionality and only strike it down if its unconstitutionality is overwhelmingly clear; and perhaps only on the basis of theories of interpretation that aren't too controversial.

In our initial exchange, Orin argued that his position is justified on the basis of human fallibility and bias. He claimed that such fallibility cuts against theories of interpretation that would lead courts to strike down "lots of laws." In response I pointed out that fallibility and bias apply just as much to the legislature as they do to judges. Therefore, general flaws of human nature can't justify judicial deference to the legislature, which is also run by fallible humans. In later posts, Orin instead sought to justify his position on the grounds that legislation enjoys superior "legitimacy" because it has the "consent" of the people. Legitimacy, as defined by Orin, has therefore become the crux of the debate. In my view (elaborated most fully in this post), there are three crucial flaws in Orin's legitimacy argument:

1. Widespread political ignorance ensures that most legislatively laws don't actually enjoy any meaningful "consent" from the majority of the people.

2. The majority of the people actually approve of the Court's role in invalidating what it sees as unconstitutional legislation. Indeed, the Court enjoys much higher approval ratings than Congress.

3. Judicial invalidation of legislation does not merely represent the unsupported opinion of a handful of judges, at least not to the extent that Orin assumes.

Orin's latest rebuttals focused on Point 2 above (which is not to say that he agrees with 1 and 3). He argued that the Court is popular primarily because it has not acted to strike down popular legislation very often and that its high approval ratings are largely due to this fact. If it were to play the more aggressive role I envision, its popularity with the public would decline. My answer is that this argument rebuts Point 2 only with respect to rare, highly popular legislation. The vast majority of legislation does not fall into this category. Thus, the logic of Orin's answer is that Point 2 does rebut his conjectures about the Court's legitimacy with respect to the vast majority of laws that don't enjoy any great degree of popularity. Indeed, the majority of the public probably has not even heard of most of those laws.

This is where, Orin claims, I misunderstood his argument. Perhaps I should have made clear that, even though Orin subjectively may stick to his original view that nearly all legislation deserves a high degree of judicial deference, the logic of his latest response gives away a large portion of the game. That is what I meant when I wrote that it is an important "Modification" or "clarification" of his theory; but I admit I should have made my point clearer. My bottom line on this issue is that the Court can indeed strike down "lots of laws" without impairing its "legitimacy" as Orin defines that concept.

In closing, I want to emphasize that I do not myself believe that the justification of judicial review rests on "legitimacy," as Orin defines it. In my view, it rests on a more general need to enforce a written Constitution against a legislature and executive with very strong tendencies to increase their power beyond justifiable bounds. It rests, also, on my view of the shortcomings of the democratic process; the quality of the latter is often undermined by widespread political ignorance and interest group power.Judges, of course, have their own significant shortcomings. That is why the power of judicial review should, in my view, be limited to negating the actions of other branches of government, thereby leaving greater scope for individual freedom and the private sector. I am much more skeptical of the kind of assertions of judicial power where judges themselves take over and run complex institutions such as prisons and schools, though I recognize that the latter may be justified in extreme cases (notably the Jim Crow-era South).

I recognize, of course, that the last paragraph is very general and fails to address a host of details and possible counterarguments. In this debate, I have mostly focused on criticizing Orin's position on internal grounds. Perhaps I erred in not doing more to advance my own approach to judicial review. That, however, will have to wait for another time.

UPDATE: I should take note of one other point Orin made in his last post. He claims that public approval of the Supreme Court doesn't necessarily reflect support for its decisions because:

[V]ery few people have any idea of what the Supreme Court does. And among that small group, only a very tiny minority has any understanding of why it does it. Given that, approval ratings will tend to reflect a lot of stuff beyond whether the public agrees with the Court's decisions as matter of personal preference.

I agree that very few people actually know much about what the Court does. But the same can be said for legislatures. However, my point was that these approval ratings and other survey results do show that the vast majority of the public approves of the Court's institutional role in invalidating legislation it believes to be unconstitutional, even if it doesn't know much about the specifics of individual decisions. The majority of the public does not seem to endorse Orin's highly deferential view of judicial power. Perhaps they would agree with him more if they knew more about the Court. But if popular "consent" only matters in Orin's theory if it is backed by extensive knowledge, he would have to accept my point that widespread political ignorance ensures that most legislatively enacted laws also lack such consent.

UPDATE #2: I probably should have paid greater attention to Orin's statement in his last post that he "do[es] not think a legal institution's popularity reflects whether its decisions are consistent with the consent of the governed." I would think that an institution's popularity is at least to a large extent based on whether people agree with its decisions or not, or at least with its role in the decisionmaking process. Perhaps I erred in assuming that Orin's emphasis on "consent" implies a need for actual agreement by the majority of the public with an institution's decisions, or at least acceptance of its institutional role. If Orin has some completely different and more idiosyncratic definition of consent in mind - one that has no connection to agreement - he may have to explain it and also explain why it is that the legislature embodies it more than the courts.

Clayton E. Cramer (mail) (www):
As you acknowledge, along with the shortcomings of the democratic process, "Judges... have their own significant shortcomings." If there were roughly equal numbers of judges and voters, you could make an argument for why judges deserve an equally powerful role in societal decisionmaking. But guess what? Judges are a tiny fraction of 1% of the electorate. Why should they as a class get the final decision on decisions that affect the other 99+% of the population?

Also, you make the assumption that "greater scope for individual freedom and the private sector" is what the Constitution requires or encourages? The federal and state constitutions do set limits to governmental power, but they also provide substantial authority for the people to pass laws. You may prefer a society with few laws and almost unlimited individual sovereignty. I generally agree that too much government is a greater evil than too little government.

But that's not what our Constitution decrees; it grants significant power to the federal government, with a few substantial limits on that power, and most power to the state governments, with considerable limits on that power (either through the Constitution, the Bill of Rights, subsequent amendments, and the state constitutions). The Constitution is not a libertarian document, as much as many libertarians want to see it that way.
1.28.2008 1:32pm
Ilya Somin:
As you acknowledge, along with the shortcomings of the democratic process, "Judges... have their own significant shortcomings." If there were roughly equal numbers of judges and voters, you could make an argument for why judges deserve an equally powerful role in societal decisionmaking. But guess what? Judges are a tiny fraction of 1% of the electorate. Why should they as a class get the final decision on decisions that affect the other 99+% of the population?

If judges' role is limited ot invalidating the actions of other branches of government, doing so leaves more scope for "the other 99%" of the people to act as they please in the private sector. That, to my mind, is far more desirable than giving them free reign in their capacity as voters, where they have much weaker incentives to make good decisions. In practice, moreover, judicial authority is likely to be constrained by a wide variety of forces even if my approach to constitutional interpretation were fully implemented (e.g. - the appointments process and the judiciary's lack of strong tools for enforcing its decisions).


But that's not what our Constitution decrees; it grants significant power to the federal government, with a few substantial limits on that power, and most power to the state governments, with considerable limits on that power (either through the Constitution, the Bill of Rights, subsequent amendments, and the state constitutions). The Constitution is not a libertarian document, as much as many libertarians want to see it that way.

I agree that the Constitution grants "significant" power to the federal government. But I would also argue that it grants far less such power than either current precedent or Orin's theory holds.
1.28.2008 1:41pm
Alec:
If the legislature is to be afforded this deference, why not the executive? At the national level, the executive is elected every four years, compared to the six years for a senator. I am not talking about signing statements, but executive action. Moreover, why not bolster the presumption for a president elected to a second term? After all, that president has been re-elected and his actions are presumably affirmed by the electorate?
I just don't buy this presumption argument. A law is either constitutional or it is not. Ditto for executive action and lower court rulings.
Similarly, I don't think this discussion needs to be framed as a robust/legitimate court debate. One can oppose presumptions of constitutionality without believing that the court is in any position to expand the federal constitution for libertarian ends or, for that matter, to contract it to suit conservatives.
1.28.2008 2:13pm
Dan Simon (mail) (www):
If judges' role is limited ot invalidating the actions of other branches of government, doing so leaves more scope for "the other 99%" of the people to act as they please in the private sector.

In practice, the judiciary routinely uses its power of invalidation to shape the elected branches' use of their positive powers. For example, it invalidates popular or necessary legislation on the grounds that it's unconstitutional unless it includes some other feature--effectively forcing the elected branches of government to incorporate the judiciary's desired feature. Or it adopts the more direct route, reinterpreting a statute so as to incorporate some desired feature, on the grounds that its (wholesale re-)interpretation is the only constitutional one. Or it interferes with the electoral process itself (viz., Bush v. Gore and its predecessors) in order to achieve its desired legislative outcomes.

In practice, moreover, judicial authority is likely to be constrained by a wide variety of forces even if my approach to constitutional interpretation were fully implemented (e.g. - the appointments process and the judiciary's lack of strong tools for enforcing its decisions).

But these constraints--however effective or ineffective--are not imposed on the judiciary's authority in general, but rather specifically on its power to resist the wishes of the elected branches of government. Given that you appear to approve of them, then, why do you so vehemently oppose the more direct, institutional such constraint that Orin proposes?
1.28.2008 2:14pm
Ilya Somin:
But these constraints--however effective or ineffective--are not imposed on the judiciary's authority in general, but rather specifically on its power to resist the wishes of the elected branches of government. Given that you appear to approve of them, then, why do you so vehemently oppose the more direct, institutional such constraint that Orin proposes?

-Precisely because the constraints I outlined are, in my view, already more than sufficient. Orin's approach would gut judicial review almost completely by limiting it to instances that are uncontroversial (and thus to laws of a kind that legislatures are unlikely to enact anyway).
1.28.2008 2:21pm
Clayton E. Cramer (mail) (www):

If judges' role is limited ot invalidating the actions of other branches of government, doing so leaves more scope for "the other 99%" of the people to act as they please in the private sector. That, to my mind, is far more desirable than giving them free reign in their capacity as voters, where they have much weaker incentives to make good decisions.
The problem with this argument is that there are situations where governmental action is either necessary, or far more efficient, than leaving it entirely in the private sector. I would agree that this is not always, or even generally the case. But for all the glorious libertarian theory about how things will work when there are no governmental police, courts, fire departments, public roads, in practice, there's a reason that these institutions are primarily governmental in nature.

I agree that voters often make poor decisions. But so do consumers unrestrained by government. Libertarian theories work well with intelligent, rational people who engage in long-term planning. But libertarian theory starts to break down with the other 2/3 of the population.


I agree that the Constitution grants "significant" power to the federal government. But I would also argue that it grants far less such power than either current precedent or Orin's theory holds.
Without question, the judiciary has granted enormous authority to the federal government beyond what the Constitution intended. At the same time, it has substantially restricted authority to the states beyond what the Constitution intended. This reflects liberalism's enthusiasm for centralized control, and a realization that elites disproportionately influence the federal government relative to the states.

But this still avoids the core issue: the Constitution is not a libertarian document. A presumption of liberty is about as accurate a Constitutional theory as a presumption that the federal government's authority through the interstate commerce clause is nearly unlimited.
1.28.2008 2:28pm
frankcross (mail):
I think Clayton's comment answers itself. Whether the Constitution is a libertarian document is debatable, but one needn't reach that point.

If government power has expanded beyond that intended (or the degree to which it should by some other standard), that fact indicates that our institutional structures have pushed us toward more than appropriate government, which would call for a counteracting institutional force, such as judicial review to move us back to the more proper balance.
1.28.2008 2:52pm
DiverDan (mail):
I would tend to agree with you that the "consent of the governed" argument loses a lot of its weight when you consider the level of political ignorance -- the fact that very few people actually know what the legislature is doing or has done on most issues. However, I would substitute "accountability to the governed" for "consent of the governed". Thus, even though the electorate may be generally ignorant of what the legislature is up to, at the very least the electorate has the ability periodically to "throw the bums out" if they do something that offends the sensibilities of a sizeable enough portion of the electorate (and, with a two-party system nearly evenly divided, it can take a fairly small bloc of sufficiently motivated voters to throw out the incumbants).

I would also agree that the justification for the existence of judicial review does not rest on "legitimacy". However, I think that legitimacy must be a concern in how judicial review is applied. For any statute which meets the threshhold test set forth in Federalist Papers 78 and 81, i.e., any law which is against the clear tenor of the Constitution, then a right of the Court to strike down the law must be considered legitimate. However, when Courts go far afield from the "clear tenor" of the Constitution in their exercise of judicial review, and strike down laws based upon their own reading of the "spirit" of the Constitution, I think that in view of the historical record (specifically Federalist No. 81) the legitimacy of that act can seriously be questioned.
1.28.2008 3:03pm
Andrew Hyman (mail) (www):
Suppose there are two statutes: an earlier statute and a later statute. And suppose there is an issue about whether the earlier statute is consistent with the later statute.

In a situation such as that, judges have ALWAYS strived to interpret the two statutes so that they are consistent with each other. There's probably some fancy Latin name for that canon of statutory construction. The point is that striking down a statute is a last resort, and should only be done if that is what the legislators clearly intended.

The same principle applies to striking down statutes for unconstitutionality. This principle was relied upon when the Constitution was written and ratified. Hamilton explained it all in Federalist 78 (emphasis added):

If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred....


This was the original understanding. Also see POSADAS v. NATIONAL CITY BANK OF NEW YORK, 296 U.S. 497 (1936):

The result of the authorities cited is that when an affirmative statute contains no expression of a purpose to repeal a prior law, it does not repeal it unless the two acts are in irreconcilable conflict, or unless the later statute covers the whole ground occupied by the earlier and is clearly intended as a substitute for it, and the intention of the legislature to repeal must be clear and manifest.


This is a sound rule of interpretation, and the Supreme Court's departure from this rule in constitutional interpretation only exemplifies the exertion of judicial will, IMHO.
1.28.2008 3:16pm
Mark Field (mail):

my point was that these approval ratings and other survey results do show that the vast majority of the public approves of the Court's institutional role in invalidating legislation it believes to be unconstitutional, even if it doesn't know much about the specifics of individual decisions. The majority of the public does not seem to endorse Orin's highly deferential view of judicial power.


I'm not sure this follows. Let's suppose the Court now, and for some time past, has generally followed a deferential approach like that which Prof. Kerr advocates. In that case, the polls showing support for the Court would simply show support for a properly deferential Court.

I think you need to show that the public understands the Court as taking the more aggressive posture you advocate before you can rely on the approval data. Otherwise, it's unclear what has actually been approved.
1.28.2008 3:22pm
LLCoolBeans (mail):
Are you guys just debating standing doctrine?

Orin, a question for you: You seem to be saying that (1) where the constitutional theory is well-accepted, the Court should just apply it as normal but (2) where the constitutional theory is debatable (what you call "subjectively persuasive," implying that it is not persuasive to many others), there should be an extra deference to the legislature and that the deference should lead one to vote against invalidation. Is that right?

If so, I wonder where you draw the line between "debatable" and "not debatable." Does the deference attach if the vote, on the Justices' views of the merits, would be 5-4 ("debatable theories on both sides") but not 8-1 (single outlier's theory only "subjectively" persuasive)? What about 7-2? What about 7-2 with a prior composition of the Court but now 8-1? What about 8-1 but there is much academic literature to the contrary? What about 8-1 but there is some academic literature to the contrary?

My point is that we can't meanigfully find some special deference that attaches only when a constitutional theory is debatable and we therefore suspect the view is policy driven. That means that the Justices should just vote in accordance with the theory that they find meritorious.

Humility is, of course, important. Justices should strive to thoroughly understand the other Justices' views and the reasons for their own views. And the political question is itself a resolution of the merits of the case (albeit not of the constitutional question) that a Justice may find meritorious and finds to counsel against invalidation. But I didn't read your post as making the simple point that standing doctrines are passive virtues. Is that all you were saying? It would help to be clear if it is.
1.28.2008 3:48pm
33yearprof:
As I see it, the main issue under dispute is how much judges should defer to the legislature in cases where they believe that a law it has passed is unconstitutional. In my judgment, no special deference is due. Judges should not give legislatively enacted laws any particular deference and should vote to strike them down in most, if not all, cases where they believe those laws to be in violation of the Constitution.


Why else would we have a WRITTEN constitution? If Parliament (the Congress) was supreme, I'd be British (and unhappy at that). The PEOPLE of the Revolutionary era wanted a written Bill of Rights, not the Legislators (Federalist or Anti-Federalist). The man-in-the-street knew that "enumerated" powers and politician's "self-restraint" would fall before the first cry of necessity.

IMHO, strict scrutiny should apply to the entire Bill of Rights. If it's in there, it IS important (if that means a few more civil jury trials, so be it). Otherwise we just have a game of this or that Judge's flavor-of-the-week.
1.28.2008 3:55pm
David M. Nieporent (www):
I agree that voters often make poor decisions. But so do consumers unrestrained by government. Libertarian theories work well with intelligent, rational people who engage in long-term planning. But libertarian theory starts to break down with the other 2/3 of the population.
But that argument is self-refuting. If 2/3 of the population is too dumb to make rational decisions, then the last thing we want to do is have majority rule.
1.28.2008 3:59pm
Clayton E. Cramer (mail) (www):

I think Clayton's comment answers itself. Whether the Constitution is a libertarian document is debatable, but one needn't reach that point.

If government power has expanded beyond that intended (or the degree to which it should by some other standard), that fact indicates that our institutional structures have pushed us toward more than appropriate government, which would call for a counteracting institutional force, such as judicial review to move us back to the more proper balance.
The difficulty is that judicial review that takes us back to what the Constitution was supposed to create isn't necessarily the libertarian standard that Professor Somin is supporting. There are certainly areas where the federal government's power far exceeds the Constitution--but there are a number of areas where judicial review has substantially reduced the authority that the Constitution granted to the states to make laws for the public good (as the people or legislature perceives the public good): Roe v. Wade, Lawrence v. Texas, Cleburne v. Cleburne Living Center, Romer v. Evans, among others. Certainly, as much as my sympathies were with the outcome of Lochner v. New York, I would put that in the same category.
1.28.2008 4:14pm
Clayton E. Cramer (mail) (www):

But that argument is self-refuting. If 2/3 of the population is too dumb to make rational decisions, then the last thing we want to do is have majority rule.
Two problems with your claim:

1. At least 1/3 of the voters (and I'm guessing that largely the least intelligent 1/3 of the electorate) doesn't vote, even in presidential elections. For state legislature, it is often 1/2 or more of the voters don't bother.

2. H.L. Mencken described democracy as jackals leading jackasses. As with so much of Mencken, he exaggerates, but there is some merit to his claim. Much of the population are ignorant and immoral. Much of the elite are educated and immoral. I'm a bit less afraid of jackasses. They are stupid, but usually lack the time and energy to screw up my life. The elites, on the other hand, having done such a fine job of running their own lives, seem to have plenty of energy and interest in running the lives of others. They may not be interested in telling me who I can have sex with, but they are quite prepared to tell me who I can hire, and what I can say.
1.28.2008 4:18pm
Clayton E. Cramer (mail) (www):

Why else would we have a WRITTEN constitution? If Parliament (the Congress) was supreme, I'd be British (and unhappy at that).
My biggest complaint is that the judicial elite wants both worlds: unlimited democracy for matters that they want the government to control (economics, confiscation of private property), and strict adherence to the Constitution for areas that they consider too important to trust to the people (sodomy laws, same-sex marriage, child porn, flag burning). They have developed a number of very clever pieces of sophistry to get what they want (such as the myriad standards of review, applied in no consistent or logical manner), but it still boils down to this: the judges decide what they want public policy to be, and then come up with rationalizations for why democracy is a wonderful thing with some guarantees, and a horrible thing with others.

You are going to see a choice example later this year, when at least two members of the Supreme Court decide that the Second Amendment is obsolete, and so a written guarantee doesn't have to be obeyed--yet rights that are, at best, implicit in the Ninth Amendment (such as abortion, homosexuality, same-sex marriage) or were clearly not intended by the First Amendment (bans on religious displays in public building, child porn) are protected.

This is part of why I hold liberalism in contempt: explicit rights are ignored; rights that are at best only implied and often not even that, are the basis for striking down the will of the people.
1.28.2008 4:25pm
Doc W (mail):
I suggest that the degree of political ignorance and poor judgment among the population is itself partly due to the unconstitutional expansion of the federal government. Each expansion creates a special-interest constituency for its maintenance. Each unconstitutional expansion undermines respect for the rule of law. IMO, history teaches the importance of judicial review and strict judicial vigilance from day 1.
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Government is fundamentally unstable to expansion. Once the Constitutional bounds are breached and the transgressions entrenched, the possibility of reasserting those bounds becomes bleak, because the (poorly informed and poorly considered) "consent of the governed" will have been co-opted.
1.28.2008 4:53pm
frankcross (mail):
I'm not saying that judicial review will always "get it right," it won't. Just that it will get closer to a better standard than would result in its absence.

There is no born "judicial elite," they are selected by the political branches. As the court is staffed by Scalias, Thomases, Roberts, and Alitos, the nature of decisions will change. Judges are part of the political process as well, they just add one more veto to potential government action.

And one other fact needs to be kept in mind. Legislature act in the shadow of judicial review. We really don't know the nature of bad statutes that might have been passed, but for the prospect that the judiciary would declare them unconstitutional. Imagine the campaign finance bills that would have been passed, well beyond McCain-Feingold, but for the knowledge of judicial review standards.
1.28.2008 5:05pm
Clayton E. Cramer (mail) (www):

And one other fact needs to be kept in mind. Legislature act in the shadow of judicial review. We really don't know the nature of bad statutes that might have been passed, but for the prospect that the judiciary would declare them unconstitutional. Imagine the campaign finance bills that would have been passed, well beyond McCain-Feingold, but for the knowledge of judicial review standards.
I would disagree. Legislators often vote for bills because they know the courts will strike them down. I have my suspicions that McCain-Feingold passed Congress because it was so obviously unconstitutional that the courts would never uphold it.

There's no question that judicial review is part of the Constitution. What I object to is the notion that Professor Somin is advancing that the courts should not give deference to the representatives of the people. If law X is clearly unconstitutional, the courts should strike it down. But if I understand Somin's argument, in cases where the law is not clearly unconstitutional, the courts should strike it down--at least, if it agrees with Somin's philosophy of minimal government.

Deference to the people and their elected representatives in uncertain cases is clearly more legitimate than the arrogant assumption that the vast majority of voters are idiots, and a tiny minority who are judges know what they are doing. Especially because Professor Somin is using this as an excuse for judges to impose his preferred political outcomes onto the rest of us.
1.28.2008 5:32pm
Clayton E. Cramer (mail) (www):
There is no born "judicial elite," they are selected by the political branches. As the court is staffed by Scalias, Thomases, Roberts, and Alitos, the nature of decisions will change. Judges are part of the political process as well, they just add one more veto to potential government action.
A veto that requires 2/3 of both houses of Congress and 3/4 of the states to override. This means that a few judges, and as little as 1/8th of the population (concentrated in small population states like mine) can tell the majority what the laws shall be? Talk about democratic illegitimacy!
1.28.2008 5:35pm
Brett Bellmore:
I think it not irrelevant that every member of the judiciary has sworn an oath which reads,


I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.


How could anyone claim to be supporting and defending a Constitution which they have decided to rule violations of to be legal? If an act of legislation violates the Constitution, in the opinion of a judge, and they do not rule it unconstitutional, they are forsworn.

And I, for one, do not believe these oaths were meant to be empty verbiage, to be taken and forgotten.

I've remarked on this before: Those of us who are not officers of the government are free to hold various views of legitimacy, but if you are an officer of the government, it is only by virtue of having [i]precommitted[/i] yourself to the view that the Constitution, [i]all of it[/i], is binding law. If you change your mind about that, the only decent thing is to resign your office.
1.28.2008 6:56pm
frankcross (mail):
I would like to see the evidence that legislators vote for bills because the courts will strike them down. Perhaps it happens, but the assertion is contrary to empirical evidence. Off the top of my head, Paul Brace studied state legislative action on abortion -- states with more liberal pro-choice judiciaries had statistically significantly less legislative abortion restriction, controllling for the legislature's ideological makeup. There's other research too and none that I know supports your assertion. And the absurd Rube Goldberg machine that is campaign finance regulation is obviously an attempt to slip one by the courts.
1.28.2008 7:17pm
BrianB:
Just a quick note about the concept that the acts of the legislature should be given deference because they represent the "will of the people". Even if this is true (which is debatable), the reason we live in a republic and not a democracy is because the "will of the people" is fickle and prone to emotional and illogical reactions. Further, allowing the "will of the people" to go unchecked, as the saying goes, is like 3 wolves and a sheep voting on what's for dinner. If the will of the people reigns supreme, then the majority will inevitably trample the rights of the minority no matter how well established (or supposedly "protected") those rights may be.
1.29.2008 11:04am