Sportive Thoughts

Jeffrey Rosen writes:

Obama acknowledged one (Breyer) of the two liberal justices appointed to the court during Bill Clinton’s presidency. (The other is Ruth Bader Ginsburg.) In different ways and to different degrees, each of them has championed yet another conception of the judiciary: one in which the courts, in most cases, should play only a “minimalist” role in America’s democracy, generally preferring deferential and narrow rulings to broad ones. This doctrine developed in part as a strategic and defensive response to the fact that conservative activists on the Supreme Court were aggressively striking down progressive legislation. But minimalism is also principled. It urges judges to issue opinions that focus closely on the particular circumstances of the case at hand, steering clear of sweeping pronouncements about liberty, equality or justice. By so doing, the theory goes, the courts can avoid getting too far ahead of the will of the people and their elected representatives, and preserve judicial legitimacy in the process.

But an amateur would think that, because of the very fact a case must be petitioned before the Court in order for a law to be struck down, the will of the people is preserved in citizens' right to sue. It seems perfectly legal and constitutionally sound for the court system to be used as an instrument of direct democracy--a way to bypass the complex legislative procedures of Congress.

The problem, however, is this: why should a single court have the power to veto the represented opinion of the people on behalf of a minority interest? I think the answer is that although only one court--the Supreme Court--is constitutionally recognized as having soverign judicial power, the reality is that our federal system has its own internal checks and balances to ensure that any parties with an interest in a case is heard.