I've been doing some thinking about the whole "activist judge" issue. I was greatly enlightened by the discussion beneath this post, and I've come to a conclusion: I agree with the conservatives that judges should not overstep their office. They do not make laws. HOWEVER, this has to come with a caveat, so the question is simply moved up a level: at what point do we ALLOW judges to legislate from the bench? standingout hooked me up with this valuable paragraph from the Lawrence v. Texas hearing:
Thomas wrote a separate opinion in which he found the Texas law "uncommonly silly." He wrote that: "Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources." He said that if he were a Texas legislator, he would vote to repeal the law. However, he could not agree to strike it down as unconstitutional because he found no guarantee of privacy contained within the words of the U.S. Constitution.
Fair. I admire his integrity, and this was not a life or death issue. But let's say that some issue comes before the judges that is, and that their ruling, if staying with the binding document, would be a great injustice. I'll raise the stakes: pretend everyone agrees that A) to uphold the law would be Constitutional, and B) to uphold the law would also do harm to someone involved in the case--assume we're talking about a lynching law at the state court level that's written into the state's constitution or something like that. Aren't the judges morally bound to legislate from the bench, in this case? And if they are, then the principle can't be "don't ever legislate from the bench"--it would need to be more nuanced. Right?