Seems like pretty near every fiat I ever rode in was like a bad drug, enticing but disappointing. Also seems like we need to be clear about judicial review v. judicial activism.
In the American Legal History class I just got done taking, we spent a lot of time on the protoScalian jurisprudence of what legal historians call the Lochner era. From the scrapping of Reconstruction to the New Deal, the 14th Amendment was hijacked by judges who used it to prevent legislative action that ran against the grain of their laissez-faire ideology. It was these dead-hand conservatives who were rightly lambasted for judicial activism by progressives and legal realists.
Their ideological heirs on the present Supreme Court are the most "activist" in US history, if you go by the number of laws they've overturned. I think this kind of judicial tight-reining is bad because it impairs our collective ability to respond to "the felt necessities of the time." (see OW Holmes)
But I don't think it's okay to say "judicial activism is bad" and leave it at that. Not only does that line serve the right wingers who've been pushing it since Nixon's Southern Strategy, in which he ran against the Warren Court's race, civil rights, and criminal procedure cases, it's fundamentally a mis-representation of what we want and need judges to do. Check out Jack Balkin's musings on good judging (scroll down to May 18) for a far better line on this than I can provide.
My own take is that in a complex, necessarily administrative state, an engaged judiciary is even more critical to making the often contradictory elements of law work together in an effective and accountable system. The late Judge Dwyer's epochal role in the fight over Pacific Northwest forest policy is for me a great example of good judging in both result and method, but W and his fellow absolutists call it judicial activism and are doing their damnedest to keep it from happening again.
The decision Chris Bertram finds objectionable seems to me like it might be the EU's answer to Marbury (in which judicial review was established for the US).
And talking dog: Pickering, Pryor, Thomas and Ashcroft might be mediocre, but Estrada and Scalia are not. Nor, by the accounts of people I trust, were Clinton's judicial appointees overall. Centrist, certainly. Mediocre, generally not.
My documents say Robert Scott Greacen. But my friends call me pi.
just don't get P.I.S.S.C. about it.
Anybody in DC plan for the holding of grudges and settling of vendettas?
Only their own, I fear.
And here I thought it was against the Indians.
"1675 and 1676 went really badly for the Indians."
Or was it the *French* & Indians? (heyyy....)
I get hives within 20 M of Disney-anything, but don't they have some cutesy Injun stuff? Or has that all been cleaned up for post-racial America?
Jon M:
Atrios has a copy of the Mar 14 Chronic article in his archive here or try there maybe. Not to worry: "No one suspects any Watergate stuff." No one.
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