THE PROBLEM BEING THAT LAWYERS ARE NOT ARISTOCRATS:

The Scourge of Juristocracy: When rights are at issue, Americans instinctively turn to the courts. It is an undemocratic habit that they have exported, along with the underlying institutions, with dismaying success. (James Grant, Spring 2010, Wilson Quarterly)

The United States may not be the world’s indispensable nation, as its secretary of state famously claimed a dozen years ago, but it has certainly been the indispensable inspiration in the global spread of democracy. The irony is that while this has not led to a great deal of imitation of American institutions such as the presidency, the single most widely replicated feature of the American political system is also its most undemocratic one.

Since the end of World War II, there has been a worldwide convergence toward U.S.-style judicial supremacy—or what some observers now call “juristocracy.” In both long-established and new democracies, as Ran Hirschl shows in his excellent book Towards Juristocracy (2004), constitutional reforms have taken political power away from elected politicians and shifted it to unelected judges. When democracies were established in Southern Europe in the 1970s, in Latin America in the 1980s, and in Central and Eastern Europe and South Africa in the 1990s, they almost all included a strong judiciary and a bill of rights.

Of the mature democracies that have embraced juristocracy in the postwar rights revolution, Israel is one of the most extreme examples. As Aharon Barak, the president of the Israeli Supreme Court from 1995 to 2006, once claimed, “Nothing falls beyond the purview of judicial review. The world is filled with law; everything and anything is justiciable.” Even the most contentious questions—such as “Who is a Jew?”—were questions for the court to answer. Barak made it clear that the main influence on his approach was the U.S. Supreme Court, the decisions of which were “shining examples of constitutional thought and constitutional action.”

From the beginning, Americans have embraced and idolized the notion of fundamental, higher-order, immutable law that is somehow superior to politics. It is a view that entails rights enshrined in a constitution and interpreted by judges, who extend their authority over ever larger domains. In the 20th century, the U.S. Supreme Court demonstrated an increasing readiness to actively resolve politically controversial issues, from Roe v. Wade (1973), which established the right to abortion, to its decision in Citizens United v. Federal Election Commission earlier this year, which overturned legislation that barred corporations from sponsoring political ads to influence elections—a “devastating” ruling, as President Barack Obama described it, which “strikes at our democracy itself.”

Modern judicial activism is in many ways an expression of the old belief that democracy must be tempered by aristocracy—an idea that was prevalent in the late 18th century and now masquerades in democratic garb. The main vehicle by which judicial activism has been brought about is, of course, the language of rights. Coinciding with the articulation of the secular, anti-religious feelings of the Enlightenment, the flourishing of constitutional debate in the 18th century witnessed regular appeals to the idea of inalienable natural rights, which took on a sacred role. But it was only in the latter half of the 20th century that the idea (now described as human rights) became an intrinsic part of legal and political discourse. For many today, a world without rights enforced by a judiciary is unthinkable. Especially in undemocratic regimes and in new or unstable democracies beset by deep corruption and other ills, rights-based judicial review is a necessary protection against arbitrary government. But in ostensibly healthier democracies, it inevitably comes at a cost.

Judges are themselves just an arbitrary government and their fundamental interest is their profession, not the Republic.

Posted by Orrin Judd at May 16, 2010 10:10 AM