Sunday, July 13, 2003

Eugene Volokh is mightily incensed over "one of the most appalling judicial decisions [he's] ever seen." Apparently, the Supreme Court of the state of Nevada has ordered the state legislature to pass a budget that increases taxes, despite a provision in the state constitution that requires a two-thirds majority in both houses before a tax increase is passed. (The court cites a separate constitutional provision which requires education to be funded, although, as Volokh points out, that provision makes no mention of what level of funding is required.) Volokh furiously suggests that perhaps a recall of Nevada's Supreme Court justices is in order. Mickey Kaus agrees, and Glenn "Instapundit" Reynolds is appalled as well.

Now, it's certainly gratifying to see all these folks get so riled up over judicial overreaching. Heck, Volokh even refers to it as "judicial nullification of the people's will", noting that the constitutional clause ordered violated was the result of an amendment enacted by voter initiative in 1996. Still, I can't help wondering why this particular case of judicial arrogance has managed to strike such a chord with Volokh et al., when so many others have invited much more temperate criticism--or none at all.

Could it be the fact that in this case the courts were running roughshod over the state's constitution, and not the state's legislature, that has everyone so exercised? In other words, is it possible that the outrage flows more freely this time because it carries no implied defense of representative democracy?

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