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The Corner

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Undue Deference



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It was only a matter of time until someone labeled judge Royce Lamberth an “activist” for throwing out the Obama administration’s rules on funding embryo-destructive research. William Saletan has decided to be that someone.

He uses NR to make his point. The magazine editorialized against Judge Walker’s “imperiousness” on same-sex marriage but ran an article defending Judge Lamberth on the ground that judges do not owe unlimited deference to other branches’ interpretations of law.

But the truth is that judges don’t owe other branches’ interpretations of the law unlimited deference, and no sound argument for a restrained judicial role assumes that they do. The argument against Judge Walker isn’t that he should have deferred to the understanding of the equal protection clause implicitly adopted by a majority of California voters. It is that his own interpretation of that clause and its implications unjustifiably allows him to substitute his policy views for theirs.

But I’m understating the weakness of Saletan’s case. He notes that Congress has passed bills that clearly conflict with the judge’s conclusion. Those bills are entitled to no deference at all, because they were vetoed and the vetoes were not overridden. They’re not laws.

I’m open to the argument that Lamberth’s decision is unjustified, although its reasoning seems plausible. But it also bears mentioning that the critique of judicial activism has less force in cases of statutory construction than in constitutional cases. If Judge Lamberth got it wrong, or Congress just doesn’t like the results, Congress can pass a new law and the president can sign it. (Assuming higher courts don’t overturn his decision.) If Judge Walker is wrong about the Constitution and higher courts back him up, there are few correctives on offer.



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