Fifth Circuit Judge Edith Jones recently spoke at a UVA Federalist Society event arguing that the Supreme Court has contributed to social decay in America. She argued, "Judges should not issue decisions that are fatal to society." Funny, the Federalist Society's statement of purpose explicitly says: "that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."
Formalism is all about ignoring societal consequences. Am I missing the point here?
Judge Jones would really have been upset with the Warren court if she thinks this one is activist.
I do think judges should decide on the basis of the law, but with some leeway to consider the record of the legislature which passed it and/or societal changes.
Eldred, for example, was decided correctly but I would have enjoyed some sort of "this is the law, but Congress was nuts to do it" clause.
And if the recent case of marijuana conviction in California gets to the Supremes, I hope someone asks: If there is no such thing as a medical use for mariijuana as is explicitly stated in the law (again stupidly), why has the DEA not raided the Federal government's plots and prosecuted those who continue to distribute marijuana, including Congress, for "medical" purposes?
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