A case in need of judicial activism
I believe in judicial restraint. I believe, as Justice Scalia wrote, that a “text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” I believe that when judges substitute their policy preferences for the commands of the law, they exceed their authority and undermine our democracy. I believe jurists should exercise judgment, and not will.
But now and again, a perfectly constitutional statute shocks the conscience. And when it does, the judge should abandon his role as umpire and take up a bat.