In a pitilessly consistent democracy, judges would not be making law at all," said Judge Learned Hand. Why, then, he wondered, do people not resent it when they do? That was 35 years ago, when judges were for the most part more restrained about making new law than they are now. Today many Americans do resent an ever-more-activist judiciary. Beware, warns a vocal group of scholars: the Imperial Presidency may have faded, but now an Imperial Judiciary has the Republic in its clutches. The fear, as Constitutional Scholar Alexander Bickel once expressed...
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