Getting back to Judge Sykes' critique of the Wisconsin Supreme Court and, in particular, to the Ferndon case on malpractice caps, my liberal readers (all three of you?) should note that this is not a liberal/conservative issue. It seems that way now because the four justices who engaged in this hyperactive masticating review of legislation did so to advance a "liberal" position.
But if this way of judging is appropriate, what is to stop conservative judges from doing the same thing. Progressive taxation treats people differently - it imposes higher taxes on wealthier people. A court that thinks it's role is to second guess the legislature on the fit between policy and purpose might, citing Milton Friedman and the work of other conservative economists, conclude that this "doesn't work" because it suppresses productivity and results in lower tax revenues to government. Therefore, it is "irrational." It's just as easy to play this game from the right as it is from the left.
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