July 19, 2005

"Restoration of Judicial Restraint Assists the Restoration of Good Will, Because Democratic Governance Gives Everyone Their Say"

The following words are written in a new Wall Street Journal editorial entitled No More Souters:

...the record across recent decades is that justices who join the High Court without a clear and confident jurisprudence eventually become part of what has been a longstanding liberal majority...

By "liberal majority," by the way, we aren't merely referring to such issues as abortion or gay rights. Our objection to Roe and to Lawrence, the Texas sodomy case, isn't on the underlying policy. It is that the Court has hijacked those social disputes from democratic debate, preventing the kind of legislative compromises that would allow a social and political consensus to form. As federal appeals court Judge J. Harvie Wilkinson put it recently in an address at Duke University Law School, "In this sense, a restoration of [judicial] restraint assists the restoration of good will, because democratic governance gives everyone their say."

But there are many other issues on which the post-Warren justices have arrogated to themselves an almost legislative authority: overturning voter-passed Congressional term limits by 5-4, dictating racial and gender preferences in law, extending the Commerce Clause to encompass virtually any federal authority as in last term's Raich medical-marijuana decision, or expanding eminent domain in Kelo.

This is the history...

But the larger goal should be to pick someone who has the intellectual conviction and firepower to help restore the High Court to its more restrained historical role. In a phrase, this means putting an end at last to the judicial legislating that was unleashed in the Warren era and that has slowed only on occasion ever since.

Here are some previous postings which contain further suggestions for the proper role of the judiciary:

Judicial Activism: Commandeering the Public Debate & Violating the Founding Principles of America
"The Supreme Court Has Converted Itself From a Legal Institution to a Political One"
Are You an Originalist?
How Original Intent Does Not Equal Conservative Judicial Activism
Rediscovering Proper Judicial Reasoning
Orrin Hatch: Don't Overstate "Advise and Consent"
Senator Santorum: Judicial Activism is Destroying Traditional Morality
Relinking Constitutional Law & Jurisprudence to the Constitution
The Kelo Decision: When Private Property Rights are Eroded, Our Freedom is Diminished

Here are two examples of how the Left views the same issues:

Viewing the Supreme Court Nomination Battle From the Far Left
"We Are Going To Go To War Over This"


Here are other postings on this site about the related issue of the judicial filibuster debate:

The Filibuster...Continued
The Injustice of Smearing A Fellow American For Political Gain
The Senate Judicial Filibuster: Power Politics & Religious Bigotry
Mac Owen's open letter to Senator Chaffee
Senator Mitch McConnell on the Judicial Filibuster
The Foolish Fourteen: An editorial by the former Dean of BU's Law School
A Power Line overview of the filibuster debate
Revisiting the Case for Janice Rogers Brown

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A day after the Kelo decision was delivered, Freestar Media LLC submitted a proposal in the town of Weare, New Hampshire where majority opinion writer, Justice Souter, owns a farm house. They requested that the town board condemn the land and give it to them, as private developers, who promise to construct the Lost Liberty Hotel in its place. Their tax revenue would no doubt be higher than the reported $2,500 that Justice Souter paid in property taxes last year. It would create employment and attract tourism. The town has a website, and an economic development committee, which has identified its two main goals: 1) Encourage the formation of new businesses, and 2) Promote tourism. However, contrary to its stated goals and the legally sanctioned purpose of economic development, the town’s board turned down the proposal.

So much for poetic justice. Justice Souter’s influence in his community shielded him from his own ruling. No other rational justification can be found.

Thankfully, the legislative branch is now busy at work attempting to shield private property rights from the Supreme Court ruling. It seems that the two may have switched roles, with the House defending the Constitution, and the Supreme Court writing new laws.

I thought I saw Alice the other day! Or maybe it was Justice Souter –skipping in Wonderland, immune to and above the laws he passes.

Posted by: Kira Zalan at July 26, 2005 4:18 PM