Judicial Activism - a Recipe for Oligarchy

Legislative bodies are supposed to make laws. Judicial bodies are supposed to interpret them. That division of power has been effective in controlling temporary oligarchical tendencies in either branch of gubmnt.

Sadly, the Supreme Courts in both Canada and the U.S. are using their respective constitutions as a mechanism to make legislation themselves and overturn legislation with which they disagree. George Will does a superb job of pointing this out by dissecting Justice Kennedy's most recent over-reaching majority opinion by the U.S. Supreme Court concerning the capital punishment of a young man who committed a gruesome murder when he was 17-years-old.

Kennedy's opinion, in which Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens joined, is a tossed salad of reasons why those five think the court had a duty to do what state legislatures have the rightful power and, arguably, the moral responsibility to do....

"[I]nappropriate" is not a synonym for "unconstitutional." Kennedy simply assumes that those 12 states [with capital punishment] must consider all capital punishment unconstitutional, not just wrong or ineffective or more trouble than it is worth -- three descriptions that are not synonymous with "unconstitutional."

This point is really important. The justices may strongly believe that some legislation is inappropriate, out-of-step with the mainstream, counter to international opinion, or based on flawed research, but none of these criticisms of the legislation makes it unconstitutional. If legislatures produce legislation that is "inappropriate, out-of-step with the mainstream, counter to international opinion, or based on flawed research", and if the electorate do not like the legislation, let the electorate vote the legislators out of office. What is both inappropriate and unconstitutional is for the Supreme Courts to overturn legislation, calling it unconstitutional when their real reason is something else.

Rory Leishman has written on this topic often in the past, with reference to the Canadian courts. I eagerly await his putting this work together in book form.