What should be the role of judges?

There is a really interesting column by Jeff Rowes in the June 6-7 WSJ. Rowes points out that conservatives and liberals actually agree on one central point: the government should almost always win in court disputes! It's called "judicial deference." "The practical result is that judges of both persuasions almost never enforce any constitutional limit on the power of government to regulate property and the economy." Because there is this liberal-conservative consensus, nomination fights usually focus on a few "culture war" issues like gay marriage or guns.

Rowe writes about the consequence of judicial deference. One example he cites is the Troubled Assets Relief Program (TARP) enacted by Congress last fall. Hundreds of billions of dollars were "put at the discretion of the secretary of the Treasury, transforming the secretary into the most powerful unelected official in American history."

Courts also refuse to protect economic liberty. "America has become a patchwork quilt of laws serving special interests." Rowe summarizes, "Judges should be neither active nor passive, neither aggressive nor deferential. In a word, they should be engaged - engaged in protecting constitutional rights to property and economic liberty, because these areas of the law have the most impact on our daily lives."