In a recent New York Times opinion piece, distinguished federal judge J. Harvie Wilkinson III argued that courts undermine their legitimacy when they interfere with the democratic process, especially by striking down laws involving culture-war issues like gay rights and guns. But Judge Wilkinson’s belief that courts best preserve their legitimacy largely by sitting on the sidelines is at odds with the judiciary’s constitutional role as a co-equal branch of government, and ignores the more serious threat from too little judging.

Concerns about overzealous courts cannot be squared with the reality of omnipresent government. At all levels, government is multiplying, laws and regulations are proliferating and debt is spiraling out of control. The Institute for Justice’s September 2011 study, Government Unchecked: The False Problem of “Judicial Activism” and the Need for Judicial Engagement, found that the U.S. Supreme Court strikes down just two-thirds of one percent of federal laws and one-twentieth of one percent of state laws. That is not a picture of judges run amok.