Friday, July 09, 2004

Law and Scruples

Today's Richmond Times-Dispatch has a great editorial on the judiciary, entitled, Law and Scruples. For a little background on the story, go here. While the story is a Virginia one, the points raised reflect what's going on in the country today especially with the Massachusettes Supreme Court. Read on.

In issuing an injunction to prevent enforcement of the accidentally reinstated blue law, Circuit Court Judge T.J. Markow made a trenchant point: 'The legislative process, like the judicial process, is sacred. It isn't the function of the court to rectify the situation' by correcting legislative mistakes.
Indeed not - particularly because the legislative branch is the most democratic of the three, while the judiciary is the least democratic. The day-at-rest injunction happens to address a situation in which the lawmakers themselves admit to being horrified by the oversight they committed, but it still sets an unhappy precedent. Imagine the havoc that might ensue were judges to begin routinely overturning statutes on the ground that they knew what the legislature really meant to achieve.
Actually, one need not imagine. One need only survey the national landscape and observe activist judges completely ignoring original intent - never mind a plain reading of legislative or constitutional text - to reinvent the law in the image of their own policy preferences. 'Rectifying the situation' easily could be yet another gauzy veil behind which to hide judicial usurpations of power.
Markow deserves credit for the unease he displayed in responding to desperate pleas. The nation would be a better place if more jurists displayed similar scruples."

No comments: