Judicial deference to legislative, or administrative, "findings" does indeed present a constitutional challenge. Now it seems all Congress has to do is state it "finds" a relation to "interstate commerce" to legislate a general police power to do anything.
But it may also point to a defect in constitutional design that did not make the judiciary sufficiently independent. A judge who considers a constitutional obligation to overturn a statute or administrative decision is chilled by the prospect of not being promoted, of being prosecuted and losing his pension, of being disbarred, of being shunned by colleagues, of having the court budgets cut so that the dockets become even more overloaded than they are, of being tax audited, of being harassed by investigators who pry into his private life and that of his family and friends, and a host of other ways that pressure can be brought to bear on those who don't play ball. Being reversed is barely significant by comparison.
I have discussed this problem with many lawyers and judges, and discern a pattern of deep-seated corruption that is so familiar to most of them that many aren't even aware of it as corruption. It is just "legal realism" writ large.
We may need to look to reforms on the ways judges are selected and promoted. Both election, and appointment by one branch and confirmation by the other, are subject to undue influence and abuse. The ancients, confronted with the problem, adopted the method of sortition, or random selection by lot, for brief periods of time, the way trial jurors are supposed to be selected. It is the only method we have found that might avoid undue influence. There are some efforts to partly implement it through doing things like random assignment of cases to judges, but that can be easily subverted and cases steered to the "right" judge. The trick would be to find a way to select judges by sortition that would ensure some minimal level of competence. For more on this see http://www.constitution.org/elec/sortition.htm .
Joseph E. Olson wrote:
Unfortunately, it reduces the "constitutional" rights subject to it to merely trivial bumps in the road to legislative abolishment.
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