With an invigorated federal power to displace state law at the ready, what keeps federal courts from working a federalism injury to states by crafting a usurpative
general common law is their institutional incompetence to do so.
The later type of judicial fiat is flatly usurpative
and spurs equally illegitimate responses, as illustrated by some of the reactions to Roe v.
Finally, there is an economic dimension to Scalia's thinking: while the temptation to do justice ex post in every case is humanly appealing, disciplined judges should resist that temptation, because it ex ante sets up wasteful, usurpative
incentives for everybody else (pp.
As Princeton University Professor Robert George put it while conducting a December interview with Senator Ted Cruz, Lincoln said "that to treat unconstitutional court rulings as binding in all cases, no matter what, no matter how usurpative
, no matter how anti-constitutional, would be for the American people--and I quote now the Great Emancipator--'to resign their government into the hands of that eminent tribunal.
Second, the order must so far exceed the proper bounds of judicial discretion as to be legitimately considered usurpative
in character, or in violation of a clear and indisputable legal right, or, at the very least, patently erroneous.