The Foundation for Constitutional Democracy


10 Short Position Papers - VIII

Filed under: Supreme Court/Judicial Papers — admin @ 1:48 pm

VIII - Judicial Dictatorship
Professor Paul Eidelberg

“The Supreme Court rules… The Court [has] asserted its power over every branch and level of government …” 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.

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

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

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

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

Prof. Quirk avers that “The majority today only has the most limited kind of power. It has no final power over criminal justice, education, taxation, voting, immigration, and deportation. 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. It may find a ‘constitutional right’ and find the majority’s plan violates it. End of majority’s plan.”

Meanwhile, “The public’s understanding of the Court is obstructed by the media’s use of misleading terms – whether it is ‘conservative’ or ‘liberal’ or ‘activist’ or ‘restrained.’ Labels obscure the real problem which is that the Court may be any of those things at its choosing – it has the unlimited power of defining its own powers. The issue is the Court’s power rather than its orientation. 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.”

The American founding fathers believed that power ultimately resides in the people. They divided power between the national government and the states – the federal system. 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. All residual powers remained with the states.

Then the federal power was divided into legislative, executive, and judicial branches. The founders imposed checks on the legislative and executive branches. But the intended limits on the judiciary were less clearly defined. 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 “adversarial culture.” It represents an intellectual elite estranged from society’s middle class, i.e., Biblical values. (Israel’s Supreme Court president Aaron Barak has baldly stated that he represents Israel’s “enlightened population,” meaning the country’s ultra-secularist minority.)

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

The Court refers to the state laws it nullifies as “arbitrary” or “without rational basis” – thus disparaging the deliberations of popular assemblies. The Court, writes one commentator, has “isolated itself from the general culture.” 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). Since they regard the majority as “medieval” or oppressive, they seek judge-imposed quick-fix solutions. Such solutions, however, lack the stability of a social consensus and can lead to social disintegration.

“Probably the institution most comparable to the Court,” says Professor Quirk, “is the Papacy. Like the Papacy, the Court determines for itself when it chooses to speak ex cathedra; that is, when it will declare a ‘constitutional right.’ The Court’s declarations are, as are the Papacy’s, infallible or, at least, unreviewable; the losing party has no appeal. 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 Court’s orders are enforced by the coercive power of the state.”

The American Supreme Court, writes Professor Edward S. Corwin, has “made itself morally answerable for the … welfare of the nation to an extent utterly without precedent in judicial annals.” Israel’s Supreme Court apes America’s. Critics refer to the Barak Court as a “Courtocracy.” Unnoticed and lurking therein is the Americanization of Israel.