Judges should uphold justice, not make policy
Published: Tuesday, November 27th, 2007
The federal courts are supposed to serve as impartial referees on questions of constitutionality, not as unelected policy-making boards or regulators. But at a time when almost every public policy dispute becomes a court case, many judges seem to have embraced their ersatz roles with gusto, further politicizing what should be an apolitical judiciary and incrementally removing democracy from the democratic process. Among the most activist courts is the famously liberal 9th Circuit Court of Appeals in San Francisco, which earlier this month tossed out higher federal fuel economy standards proposed by the Bush administration, and demanded they be rewritten, taking CO2’s impact on global warming into account. The court, citing the highly politicized and alarmist findings of a United Nations climate panel as its authority, said an “emerging consensus on global warming” made it imperative that the Transportation Department toughen fuel economy standards not just on cars, but on light trucks as well. Judge Betty B. Fletcher, writing in a unanimous ruling, said the “impact of greenhouse gas emissions on climate change is precisely the kind of cumulative-impacts analysis” required under the National Environmental Policy Act. A federal agency, when doing its cost benefit analysis, “cannot put a thumb on the scale by undervaluing the benefits and overvaluing the costs of more stringent standards.” The panel sided with those who accuse the federal government of doing just that. But Fletcher and her colleagues put their own thumbs on the scale by assuming that even higher-than-proposed new standards will alter the course of climate change. And she and her colleagues disregarded earlier court rulings in light of what they describe as the “emerging consensus” on global warming. “What was a reasonable balancing of competing statutory priorities 20 years ago may not be a reasonable balancing of those priorities today,” Fletcher wrote, declaring that long-standing practice was invalidated by alarmist rhetoric and that the scientific dispute was settled. We believe such questions are best resolved not by unelected judges, but by the representatives of the people in the executive and legislative branches. Checks and balances aren’t nullified or the democratic process negated just because some people have declared an environmental emergency. The ruling pleased environmental groups who are trying to force greater climate change regulations on the Bush administration. But the nation is treading dangerous ground when judges decide for themselves that some alleged threat to the environment grants them authority to take the state’s regulatory levers into their own hands. This ruling follows a number in which judges have used the threat of climate change to overrule the appropriate regulatory authority, in what seems a troubling new trend in judicial activism. There will come a day when this and the other rulings are slapped down by a more restrained U.S. Supreme Court. But even more gratifying would be seeing federal judges with the modesty to refuse cases that lure them into a policy-making role, and who confine themselves, as the Founders intended, to settling questions of a constitutional nature.
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