Judicial activism: be afraid.
This is a brief think-piece on recent jurisprudence and the dangers it poses. The purpose is to get everyone thinking (I know many people already are) about what we are buying into with reflexive acceptance of unfettered judicial authority.
The first case under discussion is one I wrote about earlier this week: the ruling of federal district Judge Virginia Phillips that the Don’t Ask, Don’t Tell (DADT) policy is unconstitutional, and her subsequent imposition of an injunction against enforcement of the policy. My concern in the earlier piece was that she was overstepping her authority in issuing an actionable order to a department of the federal executive. As I elaborated in an exchange with a reader here, it’s one thing for a judge to rule something unconstitutional. It’s another for the judge to issue an order that purports to require positive action from the party ruled against. And it is especially another matter if the party ruled against is an agency of the federal executive – not a state or local entity, but a coequal branch of the federal government.
If you do a little basic critical thinking, instead of simply repeating the “judicial review” mantra we were all taught in school, you will understand that there is more than one way to see this situation. Does “judicial review” mean that judges have the authority to direct Congress or the executive agencies to change their policies? Not necessarily. Continue reading “Judicial Review is not a Suicide Pact”