Judicial Activism

Right wingers, especially religious conservatives, constantly carp about activist judges acting as super-legislatures. There are at least a couple of reasons for this.

One is that over the last few years, the religious conservatives have been successful in electing like-minded candidates but don't have much social engineering legislation to show for it. This must be frustrating. If they looked closely, I think they'd find that the problem isn't judges getting in the way, it's that evenly balanced legislatures aren't passing right wing social legislation.

To the extent that judges are getting in the way, they're just doing their job of ruling on laws and constitutional issues. It's very seldom that a judge can impose an affirmative solution; mostly they just strike down legislation. Our constitution is set up to protect minorities from the tyranny of the majority, and judges are on the front lines of this battle. It's why federal judges have life tenure.

The other reason is the polarization of our politics. Our legislatures won't compromise because they are too polarized, so legislation doesn't get passed that will deal with a problem, leaving only the courts as a means for relief. Also, legislatures will draft legislation that looks good but is short on specifics. The devil is in the details and those details require more compromise and agreement. It is much easier to get the votes on something vauge, but once a vague law is enacted it almost requires courts to step in and clarify.