Judicial Legislation: Solutions Needed More Than Whining

The editors of the National Review complain that recent remarks by two Republican members of Congress are not helpful to the cause of “bring[ing] judicial power down to its proper constitutional size.” After criticizing the politicians, the editors say, “it is profoundly unhealthy for the republic to have a judiciary that effectively defines the limits of its own power and a political class that regards the rule of judges as the rule of law.” They further define the problem by concluding that the kind of judicial independence we currently have is independence from the Constitution.

But for all of their haranguing of conservative politicians and definition of the problem of an out-of-control judiciary, they provide no suggestions on how to deal with the problem. My boss doesn’t mind hearing about problems, but unless you also suggest some possible courses of action, he figures you’re simply whining. That’s pretty much what the editors of the National Review are doing in this instance.