Pam Karlan on Judicial Activism: “The question is not whether federal judges should strike down popularly enacted policies, but when.”

December 6th, 2010

Pam Karlan has a lengthy piece in the Boston Review on “judicial activsim” and the role of the Courts. Here are the money paragraphs:

The question is not whether federal judges should strike down popularly enacted policies, but when. This question has no mechanical answer. So let’s drop the vacuous accusations of activism and instead argue about the right answers to constitutional questions, and the real meaning of fidelity to the most important constitutional principles: liberty, equality, and opportunity for all.

And when we have that discussion, let’s bear in mind that obligations of constitutional fidelity do not stop at the bench. Judges would be less busy if policymakers took their constitutional responsibilities more seriously. Public officials—national and state; judicial, executive, and legislative—take an oath to support the Constitution. Unfortunately, many fail to take that oath seriously, and laws and policies are adopted out of political expediency by legislators who know that the courts will strike them down. Thus Senator Arlen Specter voted in favor of the Military Commissions Act, which sharply limited the right of Guantánamo detainees to challenge their continued confinement, and then turned around and urged the Supreme Court to strike the Act down, calling it “anathema” to what he acknowledged to be “fundamental” constitutional guarantees of liberty. Similarly, local legislators pass ordinances denying undocumented individuals the right to live or to work in their communities, despite the fact that the Constitution clearly grants control over immigration to the federal government.

Politicians have constitutional responsibilities, too. And if they showed more restraint, judges would not have to intervene so often.

I really like and respect Pam Karlan. I don’t agree with her, but she has one of the strongest Progressive voices I’ve heard. Though, I kinda chuckle at Karlan chiding law-makers for failing to take their oath to support the Constitution seriously. If they did, most of Karlan’s favorite pieces of legislation would have never made it off the steps of Capitol Hill. H/T Leiter