Thursday, March 01, 2007

Progressive Notice of Judicial Activism

Is the Capital Times coming out against judicial activism? Short answer: no. The paper of record for the progressive government movement, however, does run a well written column by Daniel Kelly exhorting resistance to the continuing power grab by the black robed elites.

Let's not tolerate judicial activism: Judicial activism corrodes our form of government in two significant ways: It turns the law into an unpredictable guessing game, and it saps our confidence in the judiciary's neutrality.

In a remarkable example of this activism, the court recently struck down a statutory cap on non-economic damages in medical malpractice injury cases. The cap may or may not be a good idea, but the reasoning the court employed was chilling. It decided the Legislature's effort to reduce out-of-control health care costs was not likely to succeed. Fair enough the court is free to express its thoughts on the topic. But then it said that if the law is not likely to work, it is unconstitutional. Using this brand-new constitutional analysis, the court took to itself the power to dispose of any law it does not like.

The court also uses this activism to surprise us with new laws. In another recent case, the court decided that any company that has ever manufactured lead-containing paint can be held liable for lead poisoning, even if there is no discernible relationship between the company's activity and the plaintiff's injury. The court then made this new law effective against activity that had ceased over 30 years ago. Apparently, even if our actions conform to the law today, we could be penalized for them tomorrow should the court so choose. This unpredictability is entirely inconsistent with the rule of law.

The timing of this piece in the immediate aftermath of Annette Ziegler's impressive vote total in the Supreme Court primary strikes me as suspicious. The entire progressive government movement has always relied on judicial activism to achieve their agenda. The editors may claim they are merely providing balance for articles like Vote for anyone but Ziegler, but it is also plausible the progressives are thinking ahead and preparing grounds to be outraged if the court somehow tips back towards the right way of dealing justice.