What Courts Are (and Are Not) For

Anyone contemplating the performance of America's judiciary over the last seventy years would gain the impression that American courts are constituted as revolutionary committees whose function is to impose new moral, social, or economic rules on society.

The right seeks to restore what it views as the Golden Age that existed between the suppression of the 1877 railroad strike and the progressive era-a period in which an income tax was invalidated, social legislation retarded, and an American welfare state prevented.

Private rights have been held to trump public order in the recent McDonald case subjecting state firearms laws to discretionary censorship by the Supreme Court.

Freedom from fear was secured for political actors by guarantees of procedural due process, habeas corpus, and the particular guarantees of fair criminal procedure in the Bill of Rights, inspired by both British experience and the colonial abuses catalogued in the Declaration of Independence.

The Dred Scott decision, the Legal Tender cases, the Income Tax case, and the cases invalidating early attempts at social and civil rights legislation did not establish any social consensus and did more to inflame factions than restore social peace, since those given permanent victories find it unnecessary to listen to the losers.

"The discovery of the judicial process by new contending groups has produced a debasement in its methods, ill-adapted in any case to inquire into large questions of public policy. Recent years have seen an abdication by both federal and state attorneys general of their duties to defend legislation, collusive consent decrees and class actions scattering largesse on both lawyers and government bureaucracies, and disregard of the statutory restraints enacted in both the Progressive and New Deal eras against 'government by injunction." In the process, ever-larger political factions have come to regard the courts as their enemies.

The consequence has been that American courts, unlike those of Britain, have feared to exercise their proper role as defenders of fair procedure.

https://www.theamericanconservative.com/articles/what-courts-are-and-are-not-for/