The Eyebrow Criterion

I’ve become a fan of Howard Bashman’s How Appealing website and its prolific updates. Among many new posts today, he takes aim on George Will’s Washington Post column yesterday titled “License to Legislate.”

Supreme Court rulings are always interesting to me, but moreso when split decisions put ideological opposites on the same side. In the case outlined in Will’s article, Antonin Scalia and Ruth Bader Ginsberg (!) dissented in a decision that limited the damages in a case as “arbitrary” and “grossly excessive.” It would seem that those justices – along with George Will – believe that the Constitution does not have a guideline for what is excessive and that the justices were exercising a power that was not theirs to decide. That is, the justices created a “license to legislate” because Congress is incapable of passing even the most anodyne tort reform thanks to the Democrats obstructionism.

I tend to agree with Scalia and Will – the “Eyebrow Criterion” is not a Constitutional reason for the Supreme Court to do what the legislature refuses to do.