Have you ever wondered why there was no provision in the U.S. Constitution vesting judges with authority to issue writs, i.e. injunctions and other types of court orders? Perhaps it was because the framers recognized the possibility that judges might try to expand their influence by using court orders to give themselves an elevated voice in the sphere of public policy. They could do this by issuing court orders requiring Congress to pass certain legislation or by requiring that the sitting president either sign or veto pieces of legislation received from Congress. Although such a suggestion may seem far fetched to someone who regards judges as simply impartial referees who go about their lives without ever having a partisan impulse, there have been a couple of cases within the last 18 months where state judges have done exactly that!
In the summer of 2005, the Kansas Supreme Court in the Montoy Case, required the Kansas state legislature to increase education funding by more that $100 million dollars. The legislature may have balked at the court's demand, but the court was not willing to take "no" for an answer. They made it clear that if the appropriation was not forthcoming that they would use court orders to shut down the state's educational system. This constitutes extortion plain and simple, i.e. "to obtain from another by coercion or intimidation," rather than through negotiation and consensus, which is the legislative principle of democratic governance.
In another case within the past couple of months the Alaska Supreme Court legislated from the bench by mandating that a policy be implemented giving same-sex couples the same state benefits enjoyed by married couples. The Alaska legislature was not willing to cave in to the demand of the court, but instead passed a bill that would have given the Alaskan voters authority to decide the issue through a referendum. The governor, perhaps partly out of fear of court sanctions, something which might have even included a stint in prison, vetoed the legislature's bill. According to an article published by Focus on the Family's CitizenLink: "Palin said she had no choice but to veto the bill because it presented a constitutional challenge and would have put her in contempt of court."
Hence we have a pair of cases where state supreme courts have commandeered other branches of government to advance the judges' political preferences.
What's to prevent this type of tyranny from being practiced by state judges elsewhere? Nothing, unless the state constitutions provide built-in protections, which might include periodic elections for judges and a requirement that the issuance of court orders be based on provisions of statutory law rather than on constitutional warrant.
Veto Means Alaska Must Implement Same-Sex Benefits http://www.citizenlink.org/CLBriefs/A000003521.cfm
