Bench Memos

Re: Time for a Stronger Judiciary?

Anthony Dick’s post raises some interesting questions.  But I don’t get very far asking or answering how “assertive” the judiciary should be.  All the interesting questions are about constitutional meaning, since getting it right means never having to say you’re sorry.  I would distill the whole business into two questions:

1. Is a particular constitutional issue within the proper ambit of the judicial power?  This is itself a question about constitutional meaning–of the Article III power (as modified if at all by subsequent amendments).  If the answer to this is no, do not proceed to question 2.

2. If the answer to question 1 is yes, has the arm of government whose action is challenged violated the Constitution?

Ramesh’s article, I think, addressed both questions: the first in the Voting Rights Act case, and the second in the Ricci case.

If the answer to both questions is yes, then I wouldn’t care a fig about how “strong” the judiciary appears.  If either one is answered no, why worry about how “weak” it appears?  The only thing is getting the job done right, and it is never out of season to do that.  Does it help to have a “comprehensive vision of substantive constitutional meaning that can be applied robustly and aggressively in accordance with the classical liberal principles of the American founding”?  Maybe.  But first I’d want to know what that means.