Maybe that's the problem

What's wrong with criticizing the court?

Justice Stephen Breyer stated several years ago, "We run no risk of returning to the days when a president (responding to [the Supreme] Court's efforts to protect the Cherokee Indians) might have said, 'John Marshall has made his decision; now let him enforce it!' "

The Federal Courts have been assuming legislative powers for some time now. The exclusionary rule, the Miranda warning, detailed plans for busing students to achive integrated schools are a few examples. Sometimes, they've been encouraged by Congress's passage of vague legislation on the understanding that the courts would clarify it by repeated litigation. Then they started using trends in international jurisprudence to support changing common law in this country. All without any explicit authority in the Constitution.

Most of the time, such expansions of judicial power don't hurt us too much, but when the court further clipped the president's inherent war powers in the Hamdan decision, including the ruling that terrorists as illegal non-combatants are covered by the Geneva Convention's Common Article Three. I've never really seen any basis for all this guff about Bush making himself a tyrant, or, as Garrison Keilor claimed this week, that he could or would pick up anybody he wanted off the street and throw them in jail. He's ignorant of the actual procedures, but stupid remarks like that go unchallenged in the media every day, and mislead public opinion. I'd be interested to see how many Americans now believe that we routinely torture prisoners as official policy.

The Jackson threat has always served as a check on overreaching by the courts. It's about time it was reinvigorated. Don't expect that any time soon.

BTW, read Judge Pryor's piece. It's excellent.