Texas is blessed to have legal scholars like Texas Supreme Court Justice Don Willett. Justice Willett was lauded by conservative columnist George F. Will for providing the judicial roadmap for overrulling Obamacare and for being an “engaged” Judge.
An “engaged” Judge like Willett is much different than an “activist” Judge who thumbs his or hers nose at the Constitution. What is the difference between an engaged Judge like Willett and an activist Judge? I will let George Will take it from here…
“There is,” Willett explains, “a profound difference between an activist judge and an engaged judge.” The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary’s duty to declare what the Constitution means. Let us hope the Supreme Court justices are engaged when considering the insurance mandate.
Justice Willett wrote the road map for the US Supreme Court to overrule ObamaCare in his concurring opinion issued on a case before the Texas Supreme Court covering different circumstances, but the same overriding judicial principles.
The question Justice Willett answered is, if a legislature’s judgment that a law is desirable, does that relieve the court of the duty to judge whether or not the proposed law is in fact constitutional. Willett answered that questions with a resounding no.
Has the U.S. Supreme Court construed the commerce clause so permissively that Congress has seized, by increments, a sweeping police power that enables it to do virtually anything it wants? Willett’s words, applied to the Obamacare mandate debate, highlight this question: When does judicial deference to legislative majorities become dereliction of the judicial duty to discern limits to what majorities are lawfully permitted to do?
Willett says: In our democracy, the legislature’s policymaking power “though unrivaled, is not unlimited.” The Constitution reigns supreme: “There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands.
Thus a legislature’s judgment that a measure is desirable does not relieve a court of the duty to judge whether it is constitutional. “The political branches decide if laws pass; courts decide if laws pass muster,” wrote Willett. Judges must recognize that legislators’ policymaking primacy “is not constitutional carte blanche to regulate all spheres of everyday life; pre-eminence does not equal omnipotence.”
Justice Willett is up for reelection in 2012 for the Texas Supreme Court, please help keep this conservative star on the court. You never know what President Obama will come up with next, we will need Justice Willett around to lay out the roadmap to overturn the next unconstitutional law the President passes.
You can connect with Justice Willett on facebook, twitter (@JusticeWillett) and on his campaign website where you can make a secure online donation to keep a conservative “engaged” Justice on the Texas Supreme Court. With a potential Texan in the White House, who knows where Justice Willett’s path will end up.
Stay tuned for more posts on Texas Judges up for reelection, as they often get overlooked for more “exciting” races and that is a shame. Don’t be fooled though, what our Judges do has an immense local and statewide impact, and in some cases like this one, a national impact as well.