I find fault with Bolick's analysis because I was under the impression that the deciding factor in the Texas case, and why the Texas case would get a different result than the Hardwick v. Bowers case, was going to be the reliance on an "Equal Protection" argument as opposed to a 1st amendment association clause argument - so in that sense, Bolick's assertion that the Texas case and the Boy Scout case both "at their core... embrace the same constitutional values" is mostly incorrect. Although I guess I can understand how a conservative would ignore the (radical) Constitutional principle that homosexuals have the same equal protection rights as all other citizens.

Nathan,

I first heard your name during the fight against California' anti-immigrant Prop 187. The voters passed it and the courts upheld it. In the meantime, the California State Assembly has passed multiple legislative initiatives that favor human rights for immigrants; while Governor Davis hasn't signed all of them, he did drop the appeal for the court's ruling on Prop 187. These legislative maneuvers have been bolstered by the sea change in the labor movement on this issue.

If the courts had stayed out of it, do you believe that the Assembly would have had the courage to overturn the most heinous principles? (I don't think they could have short of another ballot measure). How does your theory of judicial restraint play out in Prop 187?

How does Prop 187 organizing fit into my theory? Very directly. The best response to Prop 187 was not litigation but massive voter registration, legalization campaigns, and political pressure that tossed Pete Wilson out of office, elected a latino speaker of the assembly, latino lieutenant governor, and forced passage of a range of pro-immigrant legislation, such as banning "english-only" policies in the workplace. The legislature voted to give driver's license to undocumented workers last year (which was vetoed by Davis), so en those votes on pretty controversial issues, I'm quite confident that the draconian Prop 187 provisions would have been repealed.

And arguably, the backlash in the pro-immigrant direction might have been even stronger if Prop 187 had actually been implemented fully. So the price of judicial "massaging" of bad legislation often means less counter-mobilization to get rid of those who originally promoted it.

I disagree with the concept that if bad laws were allowed to be implemented/continue without judicial review, that the stronger 'backlash' would be better for the cause than removal of the law - but let's skip that for a moment.

If it's not the role of the courts to review and challenge such laws, what role do they have? Arguably, the SCOTUS in this case must have seen some legal area which they felt required legal clarification - or they wouldn't have accepted the case.

I think if you look back in history, judicial decisions have cleared the way for most social change - rather than hindering it, as you suggest.

If the Texas law was allowed to stand, certainly a segment of the population would get more angry, but that wouldn't change the law. And, as we have seen by other outdated laws which exist on a whole slew on topics, the societal recognition of a bad law doesn’t change the law, it just causes it not to be enforced - until someone stupidly chooses to.

Which is, in fact, what happened in Texas.

What is the role of the courts? To interpret laws passed by Congress, not to overturn them. That's what courts do most of the time. Constitutional cases are a rather small part of their workload, even if it's the one that gets the most media attention.

Why should unelected judges be able to second-guess democratic decisions? What reason is there to believe that judges will be more compassionate or more protective of rights than elected leaders?

Jeeze I find a lot to disagree with here. Just because someone runs for office and wins, doesn't mean that they are an accomplished legal or constitutional scholar - and the laws that these people write can and do have serious consequences in the day-to-day lives of everyone.
If whatever legislators decide is law is sacrosanct, then why bother having a Constitution and Constitutional principles? Why bother having any protections at all for the minority against tyrrany by the majority? Why bother having Separation of Powers and checks and balances?

If the Constitution says "Congress shall make no law", and the Congress decides to make the law anyway (hey, they're running for office - everybody hates those Arabs and long haired hippie freaks and liberals anyway - let's shut them up for good - it'll be good for votes), you really DON'T believe that the Courts shouldn't have the power to overturn them? You don't see the value of having judicially and legally trained people with aren't worried about bowing to any power bases and who see allegiance to Constitutional principles first and foremost as a check against runaway public opinion and power-hungry legislators sacrificing the interests of an unpopular few in order to get the votes of the many?

IS this the 1780s again? I thought all of this stuff was addressed in the Federalist.

First, the Supreme Court doesn't make its decisions based on "constitutional scholarship", since all members have fine training, yet seem to come to diametrically opposition conclusions on a regular basis-- note the series of 5-4 voting splits in recent years.

I see little value in appointed ideologues imposing their views on the population for the limits of their lifespan. Why not just hand our whole government to benevolent dictators if "independence" is such a value?

The Supreme Court has as often destroyed progressive rights as protected them. They promoted slavery in the pre-Civil War Dred Scott decision, obliterated civil rights laws during the Reconstruction era and its aftermath, obliterated labor laws protecting labor rights in the early 20th century, and now with the Rehnquist Court have repeatedly struck down rights for the disabled, religious freedom, age discrimination and a variety of other areas in deference to "states rights."

So no, I see little value for individual or civil rights in letting lose the biases if court members.

Where is the check and balance on their decisions?

Amending the Constitution? Ridiculously hard with two-thirds votes in Congress and 3/4 of the state legislatures. Impeachment? Something I favor as a more regular check on the courts, but most people want to restrict it just to actual crimes by judges, not for bad court decisions.

The best check and balance for freedom is exactly how the national government was designed-- which included no specific provision for judicial review of laws. The idea was that by having two houses of Congress and a President with a veto, the people themselves would be able to check any runaway passions, while multiple factions would encourage negotiation between many groups to protect minority rights.

If bad judicial decisions could be more easily overturned, say by a straight two-thirds vote of Congress, much like overriding a Presidential veto, I might be more supportive of judicial review as a check. But as it stands now, it is just an antidemocratic eyesore in our politics.

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