October 24, 2003


Xtreme Politics: You're Not A Voter, Just a Spectator (Daniel Henninger, WSJ, 10/24/2003)

[O]ur politics has never seemed more polarized. How did that happen?...

In some ways, America may now be closer to the England of the Stuarts, rife with religious and political animosity, than to the intentions at Philadelphia in 1789. If not, it is sliding toward reflexive strife.

I agree with the argument that this war of the cultures dates to the Supreme Court's Roe v. Wade decision of 1973....

I think many people who don't get paid for waging politics are becoming quite frustrated with dysfunctional legislatures that are now polarized -- as in Congress or in California -- essentially along the cultural faultlines created by 30 years of allowing judges to preempt the broader community's ability to discover, or reexamine, its social beliefs. These legislators have become little more than clerks to judges and the complainants in their courts -- the law as not much more than a brief. When this happens, citizens lose their status as voters or electors and become mere courtroom spectators. How can this be good?

Continuing to use the courts in this way -- the ACLU boasting it will get a court to overthrow a law passed by Congress or any legislature -- and then demanding that large portions of American society simply shut up and swallow it is a recipe for a kind of war much more serious than the mere chattering crossfire of talk shows.

Mr. Henninger is quite right: as the 1996 First Things symposium, The End of Democracy? The Judicial Usurpation of Politics, showed, outrage over judicial law-making is growing; and the recent filibusters show that as more and more power is acquired by the judiciary, it becomes impossible for elected officials to agree on who should be a judge. Given the inability of judges to do more than decide individual cases, the after-the-fact nature of court cases, and the diversity of judges, judicial lawmaking leaves everyone uncertain about what the law will ultimately be found to have been. Effectively, judicial lawmaking destroys the rule of law.

In response, the whole political environment is becoming unstable. The best solution would be for judges to re-acquire the spirit of moderation:

If an independent judiciary seeks to fill [Constitutional imprecisions] from its own bosom, in the end it will cease to be independent. And its independence will be well lost, for that bosom is not ample enough for the hopes and fears of all sorts and conditions of men, nor will its answers be theirs; it must be content to stand aside from these fateful battles....

[T]he price of [judicial independence], I insist, is that [judges] should not have the last word in those basic conflicts of "right and wrong-between whose endless jar justice resides."... [T]his much I think I do know - that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press apart an advantage to its bitter end ...

Judge Learned Hand, The Spirit of Liberty (Alfred A. Knopf, 1953), pp. 162-65.

Posted by Paul Jaminet at October 24, 2003 12:44 PM

Call me a peasant with a pitchfork if you will, but more judges should be impeached (if not impaled). Other lawyers tell me it's hard to find good, qualified people to be judges, and no doubt it would be harder if, in addition to giving up private practice, they also ran the risk of tarring and feathering. (Some of my Californian friends made the same comment about the Davis recall.) Bah. If the judges wish to be political actors, they should be answerable to the polity. They should know that there's a cliff and stay well away from it.

Posted by: Random Lawyer at October 24, 2003 12:51 PM

Problem isn't judges, but how much power we accord them. They, like every other branch of government, serve at our behest; it is our apathy that allows those all too rational, all too human judges to grab power when it is presented.

I note, too, that rule by the judiciary was frequently fact, for many centuries, and we never faced upheaval such as this.

Posted by: Chris at October 24, 2003 1:15 PM