The justices were never intended to legislate from the bench... that is the argument, and a very good one at that.
That being said..... some things in history especially in regard to civil liberty HAD to be legislated by the high courts.
For example... Alabama at one point passed a ballot initiative that prevented Blacks from voting, and it passed by a large margin... this was overturned by the Supreme Court as unconstitutional.
In most cases, the majority rules...as it is with ballot initiatives.
But in some cases, when the majority goes against constitutional principles, those amendments can and should be overturned by high court proceedings. If majority always ruled, then there would be a lot of minorities without any rights at all...as was the case in Alabama in the late 60's.
A good example of this same situation is gay marriage rights...
There are many who feel it is unconstitutional for the court system to deny non-denominational civil unions to gays, because the same service is provided to non-gays (descrimination). However, several ballot initiatives have passed banning gay marriage, in FL and in CA.
Gay marriage rights might be the last civil liberty struggle still on the table....and these ballot amendments only act as a temporary barricade, not a permanent wall. Those who are against gay marriage, have done everything in their power to prevent descrimination law suits from reaching the Supreme Court, because the courts are not allowed to recognize religious ideological arguments and that seems to be the meat and potatoes of their arguments against it..
