I am discovering that the Supreme Court shares the public's contempt for Congress. Last week, the Court struck down a major provision of the Voting Rights Act and held that the Defense of Marriage Act violated the Equal Protection Clause. While I agree with the latter decision and disagree with the former, they illustrate a troubling theme in the Court's recent jurisprudence: the demise of judicial restraint.
"The 14th Amendment," Justice Oliver Wendell Holmes famously commented, "does not enact Mr. Herbert Spencer's Social Statistics." (Spencer, for the non-Anglophiles out there, was the 19th century English biologist and philosopher who, expanding on Darwin, coined the phrase "survival of the fittest.") From Holmes' brilliant mind sprang the doctrine without which unelected judges and democracy cannot co-exist: judicial restraint, which, in Holmes' pithy turn of phrase, bars "the judiciary [from sitting] as a super-legislature to judge the wisdom or desirability of legislative policy determinations."
