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Posts Tagged ‘Courts’

Roles of the Judiciary

Reason‘s Damon Root reviews a new book by NYU Law Prof. Barry Friedman.

In other words, despite howls of “judicial supremacy” and “legislating from the bench” that have come from the left and the right, “the people” basically get their say in the end, either by tacitly endorsing a particular decision or by raising such a fuss that the Court changes course in the future.

It’s certainly a plausible thesis, and Friedman gathers a good deal of evidence to give it weight, including statements from past and present justices revealing just how closely the Court monitors political developments. But as Friedman acknowledges in his conclusion, it also suggests that the Supreme Court may be failing to uphold its core constitutional responsibility. After all, the whole point of having a written constitution is to offer a permanent check against the shifting and fleeting desires of the majority. So if it’s indeed true that the Court eventually just gives way to public opinion—as the legislative and executive branches typically do—how much independent meaning does the Constitution actually retain?

To put it another way, it’s the job of the courts to protect the constitutional rights of unpopular minorities. Sometimes that means progressives don’t get to interfere with capitalist acts between consenting adults, other times it means conservatives don’t get to tell those consenting adults what they can or cannot do with their bodies. And it always means that the courts should be ready to stand athwart the majority yelling “stop!”

I think if the Court actually supported these kinds of freedoms with a consistent, principled jurisprudence, I would fall down dead from shock.

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