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Nearly 100 years ago, the legendary Supreme Court Justice Oliver Wendell Holmes declared that striking down an act of the legislature as unconstitutional was “the gravest and most delicate task [the Supreme ] Court [could] undertake.” He was correct—in a democracy, where the people rule, overruling the people is serious business.

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Editorial, Pages 21 on 05/28/2011

Print Headline: Judicial overreach


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Archived Comments

  • 23cal
    May 28, 2011 at 8:26 a.m.

    The basic arguments of the writer are that the Supreme Court can ignore precedent and that the Supreme Court cannot interpret the constitution.

    Both of these contentions are just plain goofy.

    He says, "But when looking at old decisions to make new ones, judges can sometimes lose the constitutional forest for the precedential trees." Without relying on and basing on precedent, the entire legal system would be a crapshoot where no one would have a clue on the outcome of present cases based on past decisions. There couldn't possibly be continuity. The idea that it is legal to perform an action yesterday but not today leads to legal insanity.

    He says, "But when judges overrule the people not with the constitution as written, but as they wish it to be (or as they wished it to be in a previous decision), the rule of the people morphs into the rule of a few people" and "This is true despite the Arkansas Constitution containing no express right to privacy."

    Helloooo. The job of the Supreme Court is to interpret. It is kind of like the Bible: pretty much everyone agrees on what it SAYS, but that there are 34,000 sects of Christianity is testimony that there is a lot of disagreement on what it MEANS. It is the same with the constitution, but in the case of the constitution there is a legally designated body to make that determination: the Supreme Court.

    His argument that the word "privacy" isn't in there is the same argument used by those who disagree with the established principle of church/stae separation: the word "separation" isn't in there. However, the MECHANISM for separation is in there. Just like the word "monogamy" isn't in the Bible, but the MECHANISM for monogamy is in there. Or, for instance, the phrase "Air Force" isn't in the constitution....but the mechanism to have one is!

    Entertaining as your arguments against the right to privacy may be, they are scarcely new. By now they’ve failed to convince generation after generation of American judges.