Judges Rule

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Citizens must share the blame for the dictatorship of the judiciary

December 7, 2003 — Sometime in the not-too-distant future, every public policy decision and dispute in America, from who wins the presidency to who plays in the high school football championship, will be determined by judges. We might as well just shutter state and federal legislatures and leave their chambers as museums to our lost self-determination. Litigants and judges will ultimately make all decisions, from how we manage our public lands to how we manage our local schools, the people having passively acquiesced in the dictatorship of the judiciary.

That dictatorship won't have come about through the arrogance of unaccountable, activist, ego-tripping judges alone. It will happen — is happening — with the complicity of citizens who either have taken no notice that the checks and balances are out of whack, view the courts as a legitimate means of settling not just legal, but political disputes, or belong to interest groups that have mastered the art of using the courts to end run the democratic process.

One doesn't have to look very far to find examples of the trend. Public school teacher unions last week used the Denver courtroom of District Judge Joseph Meyer to scuttle a school voucher demonstration program approved by the state legislature earlier this year. Partisan Democrats similarly used the Colorado Supreme Court to erase congressional redistricting lines, also approved by the legislature, by twisting and bending the clear words of Colorado's constitution. Then we have environmentalists, whose tactics of saturation litigation helped create a national forest health crisis and wildfire danger by paralyzing the actions of public lands agencies, but who persist in fighting the efforts of the president and Congress to address the crisis.

Radicals and sore losers who can't advance their agendas via the ballot box and legislature, or win in the court of public opinion, have learned they can skirt the political process by shopping their causes around to sympathetic judges, of which there are plenty, state and federal. And those end runs are undoubtedly undermining the public's confidence in political institutions, and deepening cynicism about the citizens' ability to determine policy — since virtually any political decision, no matter how carefully crafted, can be overturned on the whim of one court or another.

When a political decision went against someone in less litigious times, one redoubled one's efforts to win a majority to the correctness of the cause. When someone loses a political battle today, one simply shops around for a sympathetic court and sues. It's a sad sign of the citizens' ambivalence about, or ignorance of the Constitution, that they so willingly surrender to judges the power to settle political questions.

Our elected representatives, too, have a motive for acquiescing in the dictatorship of the judiciary. Why would they take upon themselves the controversial task of hammering out some definitive decisions on the most contentious issues of the day — on abortion, church-state separation, environmental policies, etc. — when judges are more than happy to serve as the ultimate arbiters of such matters?

But the reflex for referring every dispute, no matter how important or trivial, to the courts has trickled down to rank-and-file Americans, too, who have seemingly rejected the notion that reasonable people can work out their differences in ways that don't involve courts. The dockets of our civil courts are jammed with cases that would never have been brought before a judge in earlier times, mainly because no one in their right mind would have thought of suing over disputes that could be settled through other means.

“It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions,” Thomas Jefferson once warned in a letter to a friend. “It is one which would place us under the despotism of an oligarchy.” On another occasion, Jefferson said “the judiciary of the United States is a subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederate fabric.” A court's independence from “a king or executive” was a good thing, Jefferson added, but its “independence of the will of the nation” is inappropriate, “at least in a republican government.”

We wish contemporary Americans looked on the judiciary with similar caution. Most citizens, if they worry at all, seem to worry disproportionately about power grabs by the executive or legislative branches, even while real abuses of power are occurring daily in our courts. The oligarchy about which Jefferson warns is upon us — a dictatorship of increasingly partisan, arrogant, unaccountable individuals we've empowered to serve as the arbiters of all disputes. But this transfer of power can only occur, under our system of government, with the acquiescence of the other branches and the people.

What can be done to reverse our march toward a judicial oligarchy? We could close down half the law schools, which continually churn out graduates intent on making work for themselves. We could end lifetime appointments for federal judges, a practice meant to insulate them from political pressures, but which has insulated them, instead, from common sense, reason and accountability. We could elect judges to limited terms in contested elections.

But any changes must ultimately begin with the American people. We must turn our backs on interest groups that try to achieve through the courts of law what they cannot achieve in the court of public opinion or through the legislature. We must shun those interest groups that have made protest a profession and use saturation litigation to justify their existences. We must insist that political leaders don't use the courts as an excuse for dodging the hard and controversial decisions. We must accept political defeat as legitimate and refuse to use the courts to reverse it.

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