The system of checks and balances has failed because legislators do not have the courage to impeach activist judges and remove them from office.

Judge Myron Thompson is only following precedent. The judges who set those precedents should have been impeached for legislating from the bench, and then removed from office.

Because that kind of thing is never done, there is no check on the judiciary. It is pretty simple, really.

Clark,

The problem is that the legislature lacks the unity to impeach activist judges. When judges rule on a political issue they usually benefit one side, liberal or conservative, over the other. So one side is happy that they won, even though it was through an illegitimate tactic. Convincing the electorate and working through democratic means is difficult; enforcing political opinions through the judiciary is quite simple.

So in the end, these judges will not be impeached because legislators themselves are divided upon whether or not they support their rulings, legislators who could care less about the proper role of the judiciary.

What really needs to be done is a major restriction of judicial power. The judicary was never intended to be an equal participant in American government, not even after Marbury v. Madison. It only took on that role as it realized that it could establish the parameters of its own power. The original restrictions on judicial power — granting it no ability to enforce its rulings — became meaningless. The only way to stop judicial activism, then, it to make laws that restrict appellate jurisdiction. If the Court ignores these restrictions, at least we can have a showdown between the legislature and the judiciary. I’d like to see that.