Courts Shouldn't Legislate

Amit recently commented on an intriguing US Supreme Court decision on Eminent Domain. At issue was the right of a municipality to appropriate private homes in the interest of economic development. The Court surprisingly ruled in favor of the municipality.

Libertarians are aghast. If this can happen in the US, where private property has long been considered sacrosanct, it can happen anywhere. Courts in, say India, could cite the US decision to interpret Eminent Domain likewise.

We too are disturbed by the implication of the ruling. BUT, there is a subtlety here that merits discussion. To the extent, a jurisprudence recognizes Eminent Domain (as we do both in US & India) but doesn't define its limits, the real question before a court is whether it or whether the applicable legislatures should define the limits of this principle. Frankly, it stands to reason that the people, through their elected legislatures, should make this judgment instead of unelected judges whose personal political biases will surely influence their judgments.

Seen this way, the US Supreme Court judgment is not so unreasonable. All the court did was, in effect, ask the local legislatures to set the limits for Eminent Domain as they see fit. If they overreach, they will be voted out.

Too often, there is a desire to use the courts to achieve political ends deemed "correct". It is through the courts that, for example, the US achieved racial equality which might have taken a long time through purely political means. BUT, as a counter-point, courts were also used to invent a right to abortion (as a sub-set of the right to privacy) within the US Constitution. As a direct consequence, 30 years after the famous Roe vs. Wade decision, US is still in political turmoil about its implications -- indeed, the political battle over judicial appointments has become a multi-decade campaign to overturn this decision. This is likely to happen within this decade.

Now, we happen to support racial equality and a woman's right to choose. While we agree with the outcomes of the Court rulings in these cases, we recognize that only the former has been embraced by civil society, while the latter remains an open wound. In other words, it's a gamble how society and politics will accept a court decision. If American women, for example, lose their rights to abortion in the next several years, it will be precisely because their path to securing this right went through the court, rather than through the legislature. Had pro-choice activists focused on building a political consensus rather than a majority on a court, they would not stand worried now, thirty years later. Short cuts can have long shadows.

Bottom line, courts can create favorable social outcomes by using their judicial power to -- in effect -- legislate, but it's far better to achieve the same using political means in the designated legislature. Absent that, people risk losing more politically than they gained in court.

For India, where public interest litigations are so popular and the courts are much too activist, this is something to keep in mind. Courts really shouldn't legislate.