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Engagement, Activism, or Deference: What’s the Role of the Judiciary?

Supreme Court Justice Louis Brandeis once remarked that “the reason why the public thinks so much of the Justices is that they are almost the only people in Washington who do their own work.” However, according to Clark M. Neily III, judges at all levels still might be doing their own work, but are abdicating their responsibility, as James Madison put it, to serve as an “impenetrable bulwark against every assumption of power in the legislative or executive.”

In his book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, Neily argues that the judiciary’s knee-jerk deference to the other branches has resulted in an explosion in the size, cost, and intrusiveness of government. In any given year, the Supreme Court strikes down just three of the five thousand laws passed by federal and state governments. Unfortunately, this reflexive restraint toward other branches led to the Affordable Care Act being upheld last year and the approval of eminent domain for economic development purposes in Kelo v. City of New London in 2005.

Clark Neily has spent his career fighting against the unconstitutional expansion of government and for a more properly engaged judiciary. The director of the Institute for Justice’s Center for Judicial Engagement, Neily will speak in Portland on March 18. Visit cascadepolicy.org for details and to RSVP for this special event.

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