The new undercurrent in this is that our society no longer has the ability to calculate probabilities. Risk assessment is devalued. Probabilistic thinking is repudiated in favor of "possibilistic thinking": Since we can't know what's likely to go wrong, let's speculate about what can possibly go wrong.
New Deal liberals condemned the conservative activists who invalidated progressive economic regulations, and 21st Century conservatives denounce liberal activist judges for legislating from the bench on abortion, gay rights, criminal procedure, and religious liberty. Progressives on the left and libertarians on the right have recently joined forces in suits asking judges to find unconstitutional overbroad criminal laws, bans on gay marriage, and limits on gun ownership. Are there any principled legal boundaries or legitimate political checks on the abuse of Judicial Review by justices who substitute personal policy preferences for the choices made by popularly elected legislators?
UC Professor of Political Science and adjunct Professor of Law Howard Tolley Jr. earned a PhD at Columbia and a JD as a human rights fellow at the UC College of Law. He served as President of the Cincinnati ACLU and member of the state board, clerked for a judge on the US 6th Circuit Court of Appeals, and does fact finding/mediation in public sector labor disputes for the State Employment Relations Board. He teaches undergraduate public law courses on the U.S. legal system and Constitution as well as international law and human rights. His publications include three sole authored books and nine interactive Teaching Human Rights Online cases http://homepages.uc.edu/thro/
