J.A.I.L. News Journal
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Supreme Judges and
Supreme Court worship is declining as commentators catch on that
the Court has become a direct threat to the rule of law. National Review's
Ramesh Ponnuru says that the Supreme Court represents rule by the subjective
preferences of "nine people -- and, often enough, of one woman." Former federal
appeals court judge Robert H. Bork says our robed masters "bear less resemblance
to judges than they do to commissars." The New Republic's Jeffrey Rosen says the
Court is overcome with hubris produced by its belief in its own supremacy and
its contempt for the people and their elected representatives.
In his dissent from the Court's recent decision
overturning laws against partial-birth abortion, Justice Scalia said that the
ruling rests on the personal value judgments of five people and was made
independently of any legal argument or constitutional principle. Supreme Court
justices -- and, increasingly, judges generally -- no longer
Americans are entitled by the Constitution to govern themselves.
For many years, the Court's rhetoric has made it
clear that the Supreme Commissars associate self-rule with prejudice,
irrationality and the animus of intolerant majorities. The Commissars no longer
pretend to interpret the Constitution. Instead, Supreme Commissars legislate
from the bench. This usurpation of the constitutional power and authority of
Congress directly violates the separation of powers and is grounds for
impeachment. But Congress has found that rule by judges is a convenient way to
avoid responsibility for divisive issues and has acquiesced in the Court's
aggrandizement. Congress pats itself on the back each time it sidesteps a
politically dangerous issue. But in truth, Congress has permitted the rise of
Both Republican and Democratic parties acknowledge the
fact of judicial rule. As Ramesh Ponnuru notes, both parties motivate their
activists by emphasizing that winning the presidency is important in order to
gain "the power to select the people who actually rule the country -- federal
judges." For many years now, both political parties have tacitly accepted a new
political system in which law no longer originates only in elected
representatives who are accountable to the people. This change in our
constitutional order is probably as permanent as the "temporary" racial quotas
that were illegally implemented 30 years ago in order to more rapidly integrate
blacks into society. Both of these policies originated from the same Supreme
Court decision, Brown vs. Board of Education, in 1954. The rise of robed masters
and the demise of equality in law date from this decision.
lies not in desegregation, but in the manner in which it was
achieved. It was
not done constitutionally and democratically through
appeals to good will,
persuasion and legislative action. Instead, impatience drove a liberal elite to
usurp the legislative power and the democratic process in the name of a just
result. They believed the end justified the unconstitutional means.
of the justices recognized what was happening and had to be carried along
kicking and screaming. Justice Hugo Black saw the Brown decision as "law by
injunction." Justice Robert H. Jackson saw the ruling as a blatantly political
act. He predicted that the "ruthless use of federal judicial power" would follow
if segregation were abolished by judicial decree based on nonlegal opinion that
"starts and ends with sociology." Justice Stanley Reed said the Brown decision
marked the beginning of kritarchy -- rule by judges.
The Brown ruling was
hatched from a book, "An American Dilemma," the work of Justice Felix
Frankfurter's Swedish socialist friend, Gunnar Myrdal. Myrdal argued that
democracy was the source of segregation. He alleged that the American people,
Northerners as well as Southerners, were imbued with racist impulses that would
forever perpetuate segregation. He argued that the "Negro problem" would persist
without the intervention of an extrademocratic power. He advocated a conspiracy
by an educated elite to use the coercive power of the judiciary to end
Myrdal succeeded. But the Brown decision attacked more than
segregation. It attacked the presumption of goodwill and freedom of conscience
that are the foundations of our civil society. Brown was explicitly based on the
assumption that representative democracy cannot produce moral
Consequently Brown's aftermath is not only busing and racial
preferences, but also judicial usurpation of legislative power. We are still
laboring under this heavy indictment of democracy. The Brown decision marks a
fundamental shift in attitudes about the legitimacy of democracy and the will of
the people. The Brown decision introduced into our
political system the use
of judicial coercion in behalf of just causes. One
day in the future, a
historian will write: "The American Constitution lasted less than two centuries.
It was toppled in 1954 when kritarchy first raised its ugly head."
Creators Syndicate, Inc.
(Sent to J.A.I.L. by B.
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"..it does not require a majority to prevail,
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"There are a thousand hacking at the branches of
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striking at the
-- Henry David Thoreau