Episode 5: The Judiciary, or, Supreme Power Grab

Guests: Walter Olson and Clark Neilly
Oct 16, 2012

We have no fear this week – after all, we’re discussing “the least dangerous branch.” And yet, we find ourselves wondering how the federal judiciary has oh-so-meekly taken over the duties of the other two branches of government. Cato Scholar and veteran court-watcher Walter Olson explains the perils of judicial activism by unelected judges. But Clark Neilly of the Institute for Justice warns that “judicial abdication” can be just as bad – with examples of (ouch!) forced sterilization laws. Throw in some background about the Founders’ fear of judges “construing” the Constitution and you get a cracking good discussion of the real meaning of Article III.

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  1. SpinozaCarWash

    Clark Neilly is an American hero.

  2. Atavist

    Outstanding overview of the central issue of judicial review, this is a great podcast, I hope I never have to choose between this and “Law Talk”.

    A couple of observations from a Canadian lawyer:

    Solicitation of appellate opinion by the Crown (the government) on a matter of constitutional significance in the absence of private litigants (a “reference”) is a practice of long and uncontroverted standing in Canada. How can two totally opposite conclusions arise out of a very similar legal tradition? 

    A split decision on a constitutional matter is a systemic failure of judicial review, and renders the judicial panel a de facto legislature. How then can you argue that a legislature must never be the ultimate arbiters of the constitutionality of a particular piece of legislation?

  3. Quinn the Eskimo

    The podcast almost seemed too short.  Clark Neilly brought a more libertarian perspective to the Constitution than I am used to hearing.

    I was only disappointed that people seemed to be talking past each other a little on  the issue of judicial activism and the “living” constitution.

  4. Michael Collins

    The panelists discussed two forms of “judicial activism” in this podcast.  One, holding a law to be unconstitutional without proper grounding in the  Constitution.  Two, distorting a statute under the guise of interpreting it.   A third form of judicial activism is possible, namely political manipulation.  

    Sandra Day O’Connor voted consistently on the pro-life side of abortion cases until the Webster decision.  At that point, with Kennedy newly appointed to the court, there appeared to be a majority of five for overturning Roe v Wade.   Suddenly O’Connor switched sides and voted to save Roe.  

    Why the pro-life votes, and then why the switch?  Her “pro-life” votes had no legal impact while she was part of a minority  Nevertheless, they had the entirely foreseeable political effect of cementing the pro-life movement to the Reagan coalition.  Was that her goal?  If so, O’Connor was the most successful judicial activist in history.   Reagan would not have been nearly as successful without pro-life backing.

    Justice Souter voted to uphold restrictions on abortion counseling in Rust vs Sullivan.  Later, he voted to uphold abortion.  Was his vote on Rust a political payback to George Bush for appointing him?

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