February 10, 2015

Would you prefer a passive judiciary?

By Would you prefer a passive judiciary?

Reason has published my column responding to the hubbub surrounding Sen. Rand Paul’s remarks (and Cass Sunstein’s) about “judicial activism” and “judicial restraint.” Here’s a taste:

Senator Rand Paul’s recent remarks about “judicial restraint” have shaken up both left and right, but anyone who has stood before a judge or jury knows he’s talking sense. “We say we don’t want judges writing laws,” Paul told an audience at the Heritage Foundation. “I don’t want them writing laws either, but do I want judges to protect my freedom, do I want judges to take an activist role in preserving liberty?”

Obviously the answer is yes. Any plaintiff or defendant wants the court to be alert to protect the rights of the innocent. That requires judges to actively examine the facts and the law, to reach just and rational results. But under the theory of “judicial restraint” that prevails in today’s courtrooms, judges often do the opposite.

Read the rest…

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