A matter for the courts, they say
So there’s theories that Judicial Review isn’t a counter-democratic force, because rarely do courts really overrule the legislature. In fact, for their most controversial decisions they usually are backing up what the legislature wants to do, but just can’t do for institutional or political reasons. My favorite line from the article:
“A generation of Supreme Court analysis has been done as if Barry Goldwater won 1964 in a landslide”. He’s saying that all those “liberal” Warren Court decisions matched pretty well with the majority of Americans voted for in the 60's, but just weren't getting done because of various legislative blocks.
I don’t entirely buy this view (and at least, if it’s not a counter-democratic force, then why bother with it?), but I must say one news item today really backs it up, from http://ezraklein.typepad.com/blog/2005/09/ill_be_back_as_.html>Ezra:
This is the most spectacular dodge I've ever seen. The California State Senate passed a gay marriage bill yesterday. It may or may not pass the Assembly, but no matter,
Gov. Arnold Schwarzenegger's spokeswoman said he preferred to let judges sort out the legality of gay marriage: "the issue should be decided by the ballot box or the courts," and would not comment on whether he would sign or veto the bill if it passes.”
Theoretically this should lessen my anger at the courts, but really, their judicial review is serving as a proxy for demagogues to dodge actually acting on an issue, so they can continue to get elected by railing on it.