Another Liberal Skeptic of Judicial Power

In the New York Times today (free with registration, until they start charging for columnists), Nick Kristof argues that "the main mode for seeking a more liberal agenda, such as permitting gay marriage or barring public displays of the Ten Commandments, should be the democratic process, not the undemocratic courts."

I know, we've heard this before from Mark Tushnet, Jeff Rosen, and other liberal commentators, and then liberals -- and conservatives -- who want a certain result still run right out and try to get the courts to decree it.  But it's still worth noting, and applauding, those who raise the argument.

(Not surprisingly, though, Kristof in the short column doesn't distinguish decisions that properly strike down democratically enacted laws from those that do so improperly; instead he lumps them all together under the unhelpful phrase "judicial activism."  For example, in arguing that conservative judges are now engaged in activism (because they strike down more congressional laws than liberal judges do), he doesn't even try to distinguish unwarranted conservative constitutional decisions (the 11th Amendment sovereign-immunity project, the equal protection ruling in Bush v. Gore) from warranted ones (the placing of some judicially declared limits on the interstate commerce power).)

Tom