Just got a copy of The Supremacists in the mail, Phyllis Schlafly's new book in which she takes a switch to misbehaving judges. A once-over shows it to be a history of judicial activism in many areas -- rewriting the Constitution, banning public recognition of God, imposing taxes, involvement in elections.
She cites the Dred Scott Supreme Court decision as the beginning of judicial activism, instead of the traditional Marbury vs. Madison, which articulated the power of judicial review. Scott was a slave who traveled to a free territory and sued for his freedom.
(The Court) dismissed Dred Scott's complaint, saying that he didn't even have the right to be a plaintiff in a lawsuit: blacks 'had no rights which the white man was bound to respect.' ... The Court declared unconstitutional the federal law ... forbidding slavery in most of the Western territories ... Dred Scott is a good example of the Court trying to decide issues that were not necessary to its decision, and the Court ended up causing gross injustices.
President Lincoln defied the ruling, treating blacks as citizens, because he didn't believe in the court's power to make public policy, though he did agree it had a right to decide Scott's individual case. So how do we move back from where judges have taken us? Schlafly offers 10 solutions, including reforming Senate rules, legislate limitations to courts' jurisdiction, legislation that prohibits importation of foreign law, and using the impeachment power.
There has actually been a bill introduced in the House, which would strip the federal courts of some power, including the power of messing with DOMA.
I've heard some say that the judicial activism issue might be the thread that binds the conservative movement together in the future, when we're drifting apart on many issues. After all, social conservative or libertarian, we can all agree to hate the 9th Circuit, right?