The Public Interest

Judicial activism: even on the right, it’s wrong

Lino A. Graglia

Spring 1989

JUDICIAL REVIEW is America’s most dubious contribution to the science of government. In its name, judges routinely disallow policy choices made by other branches of government, ostensibly on the ground that the policies are prohibited by the Constitution. Indeed, judges have not merely disallowed but imposed policies, as in judicial decisions effectively assuming control of schools, prisons, and mental institutions. Although often ignored, the central questions of constitutional law are whether and how this power, held by unelected judges with lifetime tenure, can be reconciled with our system of decentralized self-government through elected representatives.

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