Those Beloved Judges

Hugh Hewitt was running audio of Sen Kenndey on the Alito filibuster today. Kennedy seems to have love only for the judicial branch of government. Only they solved the serious problems confronting America. The Founders were inadequate, so the Consitituion is no guide. The executive and legislative branches didn't do the specific things he mentioned, so they were inadequate. Only the judicial branch ensured progress for America.

Kennedy is in fact wrong, from Truman's desegreation of the Army in 1948, Lincoln's Emancipation Proclimation, the Voting Rights Act of 1964, and the 13th, 14th, 15th, and 19th amendements, it turns out that the other branches were active in advancing civil rights and freedoms in America. Further, one can argue pretty persuasivly that when courts have acted first (Brown v Board of ed, Roe v Wade) they have mostly pre-empted the other branches. Its pretty clear that in the various cases which could be pointed to, the courts were only a little ahead of the political branches, and had they not acted, the other branches would have. Further, the political branches typically avoid the excesses of the judciary (not always, but much more frequently) and where they do over-reach, its much easier to repeal bad legislation than it is to reverse bad decisions. Judicial actions, because they are non-political have much less support among the people. With the political branches, the people get to weigh in and possibly over-turn executive or legislative over-reach. As such, judicial cases cause a back-lash that political action doesn't cause. This is because when you fight in a legislature or in elections and lose, you had your say and you can wait to put someone of your mind in office soon. In a court case, the people are not consulted and checks on the courts by the people are nearly absent.

Kennedy is not only factually wrong about the role of the courts as the sole institution of progress, but he embraces the least democratic and most tyrannical branch of government as the one to vest the most power in.