Filling a judicial seat these days, particularly on the Supreme Court, precipitates ominous forecasts about the transformation of American life for a generation or more. How is it that a single appointment has become so consequential?
One reason is that courts insert themselves into social and political issues that ought to be resolved by the political process. A century ago, Supreme Court Justice Louis Brandeis said that “the most important thing we do is . . . not doing.” Whether or not it had in mind Brandeis’ notion of judicial restraint, a state high court recently took a decidedly hands-off approach to a hotly contested public policy issue.