William Murchison states the case against judicial imperialism quite nicely, with reference to the latest outrage (i.e., Roper v. Simmons):
Now, if the question of a higher age floor -- 18 years, say -- for capital punishment prospects were to be argued in any ordinary forum, we could expect to hear respectable arguments on both sides. A slim majority of the Supreme Court, as increasingly is the case (see the 2003 decision eradicating Texas' sodomy law), saw no reason the nation should debate what was clear in the justices' own minds, namely, the need for a major social change -- one the outside world could applaud.
His solution? Use the so-called nuclear option to end Democrat filibusters of what he calls "non-imperial judges." There may be (indeed, are) good reasons to invoke the nuclear option, but I'm not at all sure this is one of them.
Sure Bush might be able to get a few non-imperial judges on the bench. But 7 of the current nine Supreme Court members were appointed by Republican Presidents, including three of the 5 member majority in Roper. And we still have an imperial judiciary.
Max Boot nicely explained the problem in a 1998 column:
Federal Judge Laurence Silberman came up with a pithy name for this phenomenon: the Greenhouse Effect, named after the New York Times's Pulitzer Prize- winning Supreme Court correspondent, Linda Greenhouse. ... To see why the Greenhouse Effect matters, we need to ... peek inside the hallowed chambers of the U.S. Supreme Court. Justice Anthony Kennedy ... provides ample evidence of how the capital's insidious influence can push supposedly conservative judges into becoming activists.
... Justice Kennedy initially signaled a willingness to overturn Roe v. Wade, widely acknowledged even by such liberal stalwarts as Archibald Cox to have been a terrible decision. But when push came to shove, Mr. Kennedy joined Justices Sandra Day O'Connor and David Souter to issue a wimpy plurality opinion that simply amended Roe. Since then, Justice Kennedy has also joined in overturning term limits for congressmen, Colorado's anti-gay rights initiative, and single-sex education at the Virginia Military Institute.
He's no Warren or Brennan, to be sure, but whenever he has a chance to show the cognoscenti that he's a sensitive guy -- not like that meany Scalia -- Justice Kennedy will grab at it. ...
As Boot suggests, lower court judges who show signs of the Greenhouse effect shouldn't get promotions to a higher bench. But the big problem is that the Washington echo chamber, dominated by blue state elites in the media, can turn even non-imperial nominees into Imperial Justices. Kennedy is a classic example. And Harry Blackmun before him. Maybe Sandra Day O'Connor, at least on some hot button social issues like abortion. Souter? Nah, he was probably a pinko back before he made it on the Court as Bush 41's stealth candidate.
So using the nuclear option to put non-imperial judges on the bench is far from a complete solution. Some on-going check is necessary. Term limits? Maybe. I'm starting to think it might not be a bad idea.
