In Praise of Judicial Activism

Judicial activism is a dirty word in politics. It shouldn’t be. Over at The American Spectator, David Deerson and I try to rehabilitate a term that has been sorely missing from a passive judiciary. Judges shouldn’t legislate from the bench, of course. But nor should they let the other branches’ excesses stand:

No matter which party is in power, Congress and the White House often overstep their constitutional authority. From the political speech restrictions in McCain-Feingold to the Washington, D.C., handgun ban, examples of the Supreme Court striking down unconstitutional legislation are not hard to find. That is the kind of judicial activism we need more of.

Of course, we’re not that optimistic about this changing anytime soon:

No president would nominate a judge who might nullify his administration’s signature achievements. No senator would vote to confirm a judge who might strike down an important bill that she wrote. There is a selection bias favoring judges who will defer to the political branches of government. As Georgetown University law professor Randy Barnett told The Wall Street Journal, “If I want to bet actual money, I’ll always bet the court upholds anything Congress does.”

Read the whole thing here.

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