POLITICIANS IN ROBES:

Courting Disaster (JEFFREY ROSEN, 12/05/04, NY Times Magazine)

The Supreme Court today occupies a central role in the American psyche because we expect it to have the last word on the most contested questions of our national politics. In the 50 years since Brown v. Board of Education, Americans have imagined that the justices could protect vulnerable minorities from the excesses of democratic politics. From affirmative action to school prayer and presidential elections, the court has enthusiastically accepted the invitation to answer the divisive political questions that politicians are unable to resolve.

Americans are not alone in imagining that courts can and should have the last word in the most intractable political disputes. Since World War II, more than 80 countries have transferred a startling amount of power from elected legislatures to unelected courts. As Ran Hirschl points out in his recent book ''Towards Juristocracy,'' citizens and political leaders around the globe are turning fervently to judges to resolve political stalemates. The high courts of South Africa, New Zealand, Canada and Israel, for example, have been asked to decide matters that go to the heart of their countries' national identities -- from the question of who is a Jew in Israel to the effort by Quebec to secede from Canada. As a result of this international craze, the belief that judges can be engines of social change has achieved ''near-sacred status,'' Hirschl writes.

But this near-sacred belief turns out to be a myth. Far from protecting vulnerable minorities or promoting social and economic justice, the newly empowered high courts around the world tend to side with political elites in their efforts to entrench the status quo. The rights that constitutional judges are trained to protect -- like free speech, fair procedures and property rights -- prevent the government from meddling in citizens' private lives, but they can't require it to spend money on health care or eliminate poverty. In conflicts between free-market values and the regulatory or welfare state, judges usually favor Adam Smith over big government. And European countries with relatively small social and economic disparities -- like Norway and Sweden -- have not embraced American-style ideas about judicially enforceable rights.

In America, too, the widespread belief that our Supreme Court is a powerful engine of social change is naive at best.

Here's a simple, sensible legal reform to depoliticize the Court: move it to the middle of the country, maybe Kansas.

Posted by Orrin Judd at December 9, 2004 8:22 PM