Monday, March 07, 2005

More on injudicious diktat

George Will has an excellent column today on how Anthony Kennedy, in his Roper v. Simmons, 543 U.S. ___ (2005) decision, played the role of legislator, sociologist and moralist.

At the end, Will writes:

The Democrats' standard complaint is that [Republican] nominees are out of the jurisprudential ``mainstream.'' If Kennedy represents the mainstream, it is time to change the shape of the river. His opinion is an intellectual train wreck, but useful as a timely warning about what happens when judicial offices are filled with injudicious people.


Why do we even bother to have a Congress or state legislatures at all, if the court can step in and say, "Here's what national policy is. You'll take this and like it."

Based on Kennedy's decision, what is to stop the Court, or any court, from, say, imposing higher taxes in order to comport to our "evolving standards of decency." Sure, Article I of the Constitution gives Congress the power to levy taxes, but what is that when there is a "national consensus" (as defined by the court -- indeed it apparently doesn't even take a majority of states to create a "national consensus), or when the Europeans are doing it, or when there are several studies before the Court stating that raising taxes would be a good thing.

That's what is so disturbing about the Roper decision. It wasn't based on law, which is what the Court is supposed to look at. It was based on feelings, personal opinions about what is proper, studies, all those things that are proper for a legislature to consider. If a Court can base decisions on those extra-legal materials, then there is nothing to stop them from ordering anything, whether they have the constitutional authority to do so or not, except their own grace.

That's partially why we broke away from Britian in the first place.

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