Bench Memos

NRO’s home for judicial news and analysis.

Stuart Smalley in Sotomayor Hearing


Al Franken just said, “I’m not a lawyer but . . .”   He plays one on TV.   He repeated a left-wing canard that it is “judicial activism” when the Supreme Court overturns an act of Congress.   Stuart, I hate to kill the buzz of your Daily Affirmation, but there is a little old case called Marbury v. Madison. You might want to look it up. Anyway, sometimes Congress (that’s the branch you are now in) or the states pass laws that don’t square with the Constitution. If those laws are challenged before the Court, it is the Court’s obligation to declare them unconstitutional.   Judicial activism is something different: That’s when judges make decisions based on their own personal views, background, opinions, and personal sense of justice. This can be either striking down legislative acts that don’t violate the Constitution and are just the people properly governing themselves, or failing to uphold provisions that are explicit in the Constitution.   Just wanted to share.


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