People have been complaining about "activist" judges for years. But here's a Washington Post report on a Senate speech by Senator John Cornyn that speculates that judicial activism might cause violence....I continue the discussion the next day in "Judicial politics." The next post, "Congress and the judiciary -- with a response from Justice Kennedy," acknowledges that Justice Kennedy had addressed the subject. (He said, when pressed as a House committee hearing that "disagreements over the meaning of the Constitution were 'a very important part of democratic dialogue.'") There's a fourth post on the subject here.
The article connects that remark (which seems to be a rather idiotic sort of talking off the top or your head) with Representative Tom DeLay's recent comment....
DeLay was grousing about the judges in the Schiavo case; Cornyn was complaining about the recent Supreme Court case that barred the death penalty for persons who commit their crimes before they reach the age of 18.
It is really a shame how little people understand of the reasons judges decide cases the way they do. DeLay and Cornyn, like many others, signal to the public to think that the judges are simply out of control and the cases are inexplicable as the serious work of deeply thoughtful persons steeped in the legal tradition. It wouldn't be wise just to assume that judges are unerring oracles of law, but to leap to the opposite conclusion and decide they are frauds is even more foolish. And for a public figure even to hint at violence as a solution is completely unacceptable.
Listening to Totenberg's report, I got the feeling she'd heard a stock speech composed a year ago. It referenced those old Cornyn and DeLay remarks, as Totenberg reports. I agree with O'Connor's points and think Totenberg put together a spiffy report, but it felt like a report from last year, too stale to address. Cornyn and DeLay haven't continued with that idiocy, and a lot of things have happened since then. Why not address those things? Why not say something about how the push-back against Cornyn and DeLay changed their behavior? Maybe she did say some other things that would have seemed fresher. I don't know. I don't have the text to use to find other things that might inspire some blogging. But the text is withheld. Why? Well, one reason for not releasing the text of a speech is because you want to deliver the same speech over and over again.