Foundation for Constitutional Democracy

 

August 5, 1999

 

Position Paper VIII:а УJudicial DictatorshipФ

By Prof. Paul Eidelberg

 

УThe Supreme Court rulesЕ The Court [has] asserted its power over every branch and level of government ЕФа Thus begins a two-page New York Times article of June 27, 1999, detailing how the US Supreme Court has altered the character of American society.

 

ааааааааааа Although the Court does not make many decisions Ц roughly 170 of some 7,000 annual petitions for review Ц their decisions impact societyТs pressure points, from police authority to questions of privacy, discrimination, citizenship, free speech, employment, federalism.а Scholars refer to the CourtТs expanding power as Уjudicial dictatorship.Фаа This is the title of an essay by Professor William J. Quirk (Transaction, Jan.-Feb. 1994).а

 

УJudges in Europe [unlike their American counterparts] do not declare legislative acts to be illegal [i.e., unconstitutional].Фа The US Supreme Court has become a super legislature, the primary engine of social change.а The Court deliberately picks cases of sociological significance:а pornography, abortion, affirmative action, education.

 

Significantly, the Court tends to favor the claims of minorities vis-à-vis the acts of popular elected majorities.а Most judges are closely tied to AmericaТs intellectual elites, which commonly display contempt for the majority or a fanciful fear of majority tyranny.а Actually, the majority in a democracy is rarely inclined to oppress the minority, and for various reasons.а As issues change, so do majorities, and any individual may find himself on the minority side in the next issue.а Besides, in a complex democracy, seldom is a majority so unified that it is able to long-wield oppressive power.а

 

Also, a minority is not without recourse, quite apart from explicit constitutional rights.а If a minority cannot change the majorityТs mind, the Supreme Court may intervene and grant the minority what the majority rejects.а Criminals are often granted freedom; pornographers the right to publish; lesbians the right to adopt children.аа In such cases, the Court substitutes its judgment of what is right or wrong for that of the majority.

 

Prof. Quirk avers that УThe majority today only has the most limited kind of power.а It has no final power over criminal justice, education, taxation, voting, immigration, and deportation.а In these areas, as in all others, the majority can take initial action but it is always up to the Supreme Court to make the final decision.а It may find a Сconstitutional rightТ and find the majorityТs plan violates it.а End of majorityТs plan.Ф

 

Meanwhile, УThe publicТs understanding of the Court is obstructed by the mediaТs use of misleading terms Ц whether it is СconservativeТ or СliberalТ or СactivistТ or Сrestrained.Та Labels obscure the real problem which is that the Court may be any of those things at its choosing Ц it has the unlimited power of defining its own powers.а The issue is the CourtТs power rather than its orientation.а The question is whether a Court with unreviewable power to decide basic social and economic issues is consistent with the theory that government derives its just powers from the consent of the governed.Ф

 

The American founding fathers believed that power ultimately resides in the people.а They divided power between the national government and the states Ц the federal system.аа They gave the national government specifically defined powers including the power to make war, enter into treaties with other countries, issue currency, and regulate commerce between the states and with foreign nations.а All residual powers remained with the states.

 

Then the federal power was divided into legislative, executive, and judicial branches.а The founders imposed checks on the legislative and executive branches.а But the intended limits on the judiciary were less clearly defined.а The failure to check the power of the judiciary allowed the Supreme Court to expand its own powers so as to impose its will even when it is contrary to that of the majority.

 

Since the mid-1950s, the Court has acted as the Уadversarial culture.Фа It represents an intellectual elite estranged from societyТs middle class, i.e., Biblical values. (IsraelТs Supreme Court president Aaron Barak has baldly stated that he represents IsraelТs Уenlightened population,Ф meaning the countryТs ultra-secularist minority.)а

 

The US Supreme Court styles itself the protector of individual rights and self-expression against the will of the supposedly oppressive bourgeois majority.аа The Court routinely overrules the actions of the local police, boards of education, and the state laws under which they act.а УThe beneficiaries of the CourtТs protection,Ф says Quirk, Уare criminals, atheists, homosexuals, flag burners, illegal entrants (including terrorists), and pornographers.Ф

 

The Court refers to the state laws it nullifies as УarbitraryФ or Уwithout rational basisФ Ц thus disparaging the deliberations of popular assemblies.а The Court, writes one commentator, has Уisolated itself from the general culture.Фа Its language and intellectual attitudes cater only to an anti-traditional, intellectual elite.

 

Radicals and reformers routinely skip the legislative process and take their demands directly to the Court (a common practice in Israel).а Since they regard the majority as УmedievalФ or oppressive, they seek judge-imposed quick-fix solutions.а Such solutions, however, lack the stability of a social consensus and can lead to social disintegration.

 

УProbably the institution most comparable to the Court,Ф says Professor Quirk, Уis the Papacy.а Like the Papacy, the Court determines for itself when it chooses to speak ex cathedra; that is, when it will declare a Сconstitutional right.Та The CourtТs declarations are, as are the PapacyТs, infallible or, at least, unreviewable; the losing party has no appeal.а The main difference between the two institutions is that the Papacy has to persuade people that what it declares is really the truth, while the CourtТs orders are enforced by the coercive power of the state.Ф

 

The American Supreme Court, writes Professor Edward S. Corwin, has Уmade itself morally answerable for the Е welfare of the nation to an extent utterly without precedent in judicial annals.Фа IsraelТs Supreme Court apes AmericaТs. Critics refer to the Barak Court as a УCourtocracy.Фа Unnoticed and lurking therein is the Americanization of Israel.