Recently, I argued that the Constitution favors Republicans. My point was that the system of checks and balances helps those who do not want to spend money on government programs. Many features of the current system over the years have allowed minorities to block legislation including the overrepresentation of smaller conservative states in the United States Senate. Politically popular measures are routinely blocked in the Congress because of the power of moneyed interests who constitutionally are empowered to spend unlimited sums to entrench their power. Consider, for example, the continuation of the Bush tax cuts for those earning more than $1 million dollars despite majorities of Democrats, Republicans, and Independents in opposition to their continuation. If justice and the public interest are major goals of our system, our system is broken.
This leads me to wonder about the role of judges in our system. If the system is broken elsewhere, it strikes me that it is the responsibility of judges to assure so far as possible that justice is done and the public interest is met. This would entail many things, but it would include limiting the role of money in politics. It would also include assuring – so far as possible that citizens have adequate food, clothing, housing, and medical care. Members of the Warren Court interpreted statutes in ways that were designed to take us closer to economic justice. They were right to do so. Our times call for activist progressive judges. Regrettably we do not have enough of them. Meanwhile, it seems reasonable to say that we are living in an unjust society.