The Globe is carrying a story considering the impact of the Insite ruling. While the case is being called an opportunity for judicial activism, it actually is less than that and so much more.
The Insite ruling forged a new means to strike down laws if there is scientific or statistical evidence showing that a regulation worsened the danger that an individual or group faces.
This is the key. Judges will have to weigh a peice of legislation based on evidence rather than ideology. This is a unique tool that while it is making some members of the judiciary nervous should be seen as an opportunity to apply rigor instead of shrugging their shoulders in deffernce to “legislation”.
Some of the judicial comments I find a little disturbing. As one jurist stated:
“They have opened up a can of worms when they talk about disproportionality. And the Supreme Court has not really told us much about how we are to sort the good claims from the bad. The result is that there will be many claims and many tough questions to worry over.”
That’s what the evidence portion of the decision stipulates. If the evidence is insufficient — don’t overturn the legislation. I thought that was what judges are supposed to do?
And this is perhaps the important point. While legislation can describe general situations, judges must apply that to particular circumstances. These do not always fit comfortably or with intended consequences. This ruling may restore the ability of the judiciary to check legislation where its harms may outweigh the claimed benefits. Surely this is a good thing?