Monday, September 22, 2008

Who Gets To Decide What's "Fair"?

Question for the ages: if Supreme Court justices throw out what the Constitution has to say when formulating rulings and substitute their individual sense of "fairness", then aren't they substituting their individual policy preferences for those of our duly elected leaders in the state and federal legislatures?

Isn't this anti-democratic? Since Supreme Court decisions can't be overruled by a higher court and become, in fact, nearly irreversible precedent for future decisions, aren't justices who rule in this fashion in effect amending the Constitution by judicial fiat? Aren't they doing an end run around the procedures outlined for ratifying amendments by the States? What if, in the case of the recent decision on child rape, it turns out the majority made factual errors?

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