The Perils of Judicial Policymaking: The Practical Case for Separation of Powers

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....One would suspect that if the courts are drawn into other areas of public policies, we will see similar results. Today, interest groups are asking judges to approve their favored policies on everything from global warming to the precise amount of educational spending per pupil. Each of these and countless other areas would require constant and clumsy judicial oversight, with each decision creating a myriad of unintended consequences that would only create further legal disputes requiring judicial resolution.

We would be well advised to consider Alexander Bickel's caution about looking to the courts to settle our most divisive and complicated political issues: "In dealing with problems of great magnitude and pervasive ramifications, problems with complex roots and unpredictably multiplying offshoots—in dealing with such problems, the society is best allowed to develop its own strands out of its tradition."[32] This point was in fact unwittingly illustrated by Missouri v. Jenkins. While the court forced unsound and bizarre experiments on the children of Kansas City, educational common sense was restored by the political action of minority parents.

For those who do not believe that the idea of self-government has outlived its usefulness, this is as it should be.