Foobs:

On an aside, I think the flaws of the current court can be analogized to the infield fly rule. The infield fly rule exists because otherwise a strict following of the letter of the law would mean a manifest injustice. The belief that judges exist, not merely to apply the law, but to know when to break the letter of the law to pursue justice is one that the current court seems to reject (I will assert, however, that it was one that some earlier courts abused).

Consider this. You're suggesting that the Supreme Court correct manifest injustices in existing law by issuing decisions in some cases going against the existing law on the books. How does that compare with the infield fly rule? That rule is part of baseball rules, adopted by the sport's legislative body. If they decided to repeal that rule tomorrow, for whatever reason, would you advocate that baseball umpires continue to enforce it? Should they decide on the spot the the law is manifestly unjust and run the game by whatever rules they think are right?

The analogy of judges to umpires that some conservatives make is not as bad as it sounds. Both must follow the letter of the law whenever possible. The issue, brought up in the Breakfast Table discussion, is that the actual constitution can be vague and open to interpretation? So is the infield fly rule. I believe it require the umpire to decide whether the infielder does, in fact, in the umpire's judgment, have a reasonably easy catch to make. However, that the only decision the umpire should make. And deciding which side of the vague constitutional lines case facts lie on is the job of the justices. I'd like someone to point out problems with this analogy without arguing for judicial nullification.