The judiciary has been characterized as what should be the weakest branch of government and for good cause. When a judge pronounces broad and sweeping judgments about what is or is not a “right” it bypasses democracy and establishes juristocracy. Such governments cannot be considered free.
An enormous amount of trust is placed in judges. This can be seen in the Alito confirmation that is feared to “tilt the country to the right”. This language largely means that the Democrats are afraid that Alito is not going to vote the Democrat party line in court cases. But that’s not the real issue. Why does a judge have the power to tilt the country to the right or the left? What happened to the legislature being able to write laws and courts applying them?
The problem with courts setting the laws largely revolves around how cases are decided. For each case there are two and generally only two sides. In cases involving civil rights and such you have the party who feels they have been harmed and you have the government. The judgment of the court based upon the statements of the single individual (or group) harmed and the statements of the judge can have an effect on the entirety of the population without any contribution or participation on their part. This is largely why the opinion that lawyers don’t “write the law” is largely irresponsible as it tries to dissolve any argument that lawyers might have some moral responsibility.
Take Roe v Wade which had on one side Norma McCorvey and on the other side the state of Texas. The Supreme Court created abortion on demand as the law of the land based on the arguments of those parties. Amicus briefs are fine, but they don’t rise to the same level as courtroom participation. Not only did no other interested parties get to participate, a national law was created without as much as a vote of the American people.
Lobbyists and special interests may be a dirty thing in the legislature, but at least for each issue there tends to be at least two groups that oppose each other vying for influence. In a courtroom, there is no one to speak for the desires of the varied opinions of the hundreds of millions of Americans who may be effected by a judicial injunction telling the government what laws they can pass, what laws they cannot pass, what they must set their tax rate at, what they must fund projects with, and a wide variety of issues that, until recently, were seen as part of the political process, not the judicial process.
Constitutional law has largely become a joke. It can no longer be considered that the practical exercise of constitutional law is based on the Constitution. When the Constitution was signed, representatives of the people were there representing their constituents. When a judge signs an injunction that significantly modifies or changes the agreement that was made, who does he represent? He wasn’t voted into office by anyone. He doesn’t represent anyone. He simply makes the laws, and the unbridled power allows for rampant misinterpretations of the law and constitution.
Crossposted from Part-Time Pundit by John Bambenek.
If the left is afraid of Alito as a Supreme Court justice it is because they have created a system that gives judges far too much power. If gay marriage should be law of the land, there is a process to do it. When people desired desegregation, they passed laws and constitutional amendments. Running into court to impose radically new social and legal norms is the refuge of those who wish to impose tyranny.
Lastly, some would argue there wouldn’t be a Brown v Board of Education without an activist court. Activist courts may sometimes get things right and do what is best for society. But for every Brown v Board there is a Dred Scott. And when they get it wrong, you can’t just vote the bums out.
Said jcb @ 7:00 pm | Permalink
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