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Bench Memos

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Judicial Activism



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I’ve been gone 5 days, but let me nonetheless chance a quick comment on the judicial activism debate. While I find myself in agreement with much of Matt’s last post, I am having some difficulty with his point that there can only be judicial activism if there is “inteference with democratic decision-making,” if a judge is an “obstructor of the majority will,” etc.

Much of our governance consists of unelected administrative bodies issuing regulations that are no more reflective of majoritarian will (public or congressional) than decisions issued by courts. (I am putting aside for now the constitutionality of Congress’s delegation of broad powers to many of these administrative agencies, which Robby and Gerry seem to defend in the context of the New Deal.) Much federal litigation surrounds challenges to the administrative state, i.e., decisions by unelected civil servants. Is it Matt’s position that the Court must never involve itself in such cases because 1. these administrative entities are extensions of Congress and part of the Executive Branch and only those two branches have the jurisdictional authority to determine redress (if any); and 2. the Court’s intervention would be “activist” per se since elected bodies created the agencies and they are reflective of majority will? Some clarification would be useful if not to others, to me.



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