well sir I believe THAT would be crossing the line into the realm of improbability Fafblog!
Legislating From the Bench Balkinization
President Bush demonstrated his usual capacity for double-speak when he praised Judge John Roberts as a jurist who would "not legislate from the bench." As note on this blog and more extensively in Keck, THE MOST ACTIVIST SUPREME COURT IN HISTORY (mandatory reading during the confirmation hearings), the Rehnquist Court does nothing but "legislate from the bench" with Justices Thomas and Scalia being the most active judicial legislators. Consider the numerous areas in which they impose or would impose limits on state and federal officials.
1. They insist most campaign finance laws are unconstitutional.
2. They insist that most regulations of advertising are unconstitutional.
3. They insist that state legislatures can do little to protect abortion clinices from organized mayhem.
4. Thomas has suggested that elected officials have very limited capacity to regulate handguns.
5. They would use the fifth amendment to dramatically limit the capacity of local legislatures to pursue urban redevelopment.
6. They regard the fifth amendment as also limiting environmental regulations and limiting conditions that local legislatures can attach to private development.
7. They insist that affirmative action is unconstitutional, even though the persons responsible for the equal protection clause passed numerous laws providing special benefits to persons of color. nuking Iran? Well that'd just be crazy.
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