Thursday, March 19, 2009

Legislating from the bench

Now that President Obama has started making judicial appointments, it's as good a time as any to share my thoughts on the dreaded "judicial activism." While I believe in the separation of powers, I do not see how we can ever be free from such a thing. For one thing, as anyone who stayed awake during law school can tell you, it is not always possible to draw a bright line between construing the federal or state constitution and reading one's own wishes into it. The only working definition seems to be that judicial activism is any adjudication whose outcome we don't like. Moreover, courts are necessarily human institutions, not adjudicating according to some algorithm. Conservative judges have certainly been known to enagage in what would be called judicial activism if anyone else did it, often to narrow freedom rather than to expand it. Would you rather have courts that err on the side of too much freedom or too little?

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