America’s Tyrannical Judiciary

Legislating from the bench

by Vincent Fiore
05/01/05

Not since the death of Princess Diana in 1997 can I remember such a passionate interest and empathy displayed by so many over the death of a single human being. These same feelings are on display again by tens of millions of Americans, and across the globe, over the death of Terri Schiavo.

Terri finally succumbed to death at around 9:00 AM on March 31, at the Pinellas Park hospice in Florida, bringing to a close a 15-year nightmare in which she lay in a semi-vegetative state. But for many, beneath the grief over Terri’s passing lies a bubbling rage over a judiciary branch that has recklessly incorporated personal political yearnings in its decisions as opposed to preserving constitutional law.

How can this happen when the founders of our country set up the judiciary to be of equal footing alongside the executive and legislative branches of government--answerable to the Congress, and ultimately, the people?

Though law and constitutional scholars hold varied opinions as to how and when the judiciary started behaving as a de facto government unto itself, few would disregard the ramifications of the decisions reached by the Supreme Court in the 1803 case of Marbury v. Madison. In brief, it is thought that in Marbury v. Madison, the court granted itself new, unprecedented powers. The court established that it had the power to decide the constitutionality of congressional and executive legislation, chiefly in what is now commonly known as “judicial review.”

The effect of judicial review since its invention by Chief Justice John Marshall in 1803 has been nothing short nation-shaping. Throughout the centuries of court rulings from federal and lower courts, judges have assumed powers that are unprecedented, taking on a legislative role, and making law instead of enforcing it.
Historical cases like Dred Scott v. Sanford, Roe v. Wade, and Plessy v. Ferguson are federal examples of judges ignoring the clear meaning of the Constitution and instead creating a new mandate that in turn becomes the law of the land.

Judicial activism is not only prevalent on the federal level, but an increasingly worrisome trend on state levels as well. The American people have seen state courts overturn the will of the people and rule “unconstitutional” such mandates as California’s Proposition 187 in March 1998. They have seen the legalizing of gay marriage in Massachusetts by the will of that state’s Supreme Court in November 2003.

Even less sweeping advances by activist jurists have stained the process. Witness the New Jersey Supreme Court, which ruled in October 2002 that Democrat Frank Lautenberg could replace a compromised Robert Torrecelli on the ballot for that state’s Senate seat, even though New Jersey law clearly states that a change in candidates must occur no less than 51 days out from an election. Torrecelli bowed out with only 34 days remaining until Election Day.

In some respects, the judiciary is looked upon by the public as some sort of mystically-shrouded, black-robed guardianship of society, whose words are to be adhered to, lest the walls of chaos come crashing down upon civilization. But in truth, judges are just lawyers, who, in terms of being human, are just as “susceptible to or representative of the sympathies and frailties of human nature.” Judges read the morning newspapers, and form opinions--political or otherwise--as do most people.

At times it seems like the Judiciary has what I call the “conservative complex,” which is basically a need to be liked among the elite establishment that populates the mainstream media. Their rulings oft-times tend to be more in line with perceived social trends among society, and based on a populist stance while disregarding a lawful rendering of fact.

Judges, like politicians, have a vested interest in their legacy as well. It is just absurd for anyone to casually say that judges are above the vanity and failings of other prominent figures, like politicians, with regard to how history will view them when their time on the bench is over. Nobody, even the most passive among us, wants to be remembered badly, or in the case of judges, as men of pedestrian ability.

Finally, the sway of near-omnipotent and arrant authority, the “stroke of the pen, law of the land” enticement as once stated by ex-Clinton aide, Paul Begala, is a reality among some jurists. It is this unapproachable power--that has only metastasized with time--which Americans are now coming to realize infects their judiciary today.

Ed Meese, former Attorney General under Ronald Reagan, once said: “The American people will never be able to regain democratic self-government--and thus shape public policy--until we curb activist judges.” It is the very first line in Mark Levin’s prescient best-selling book, Men in Black, that aptly decries and categorizes the history of an activist judiciary.

Americans, from now until Election Day, will be hearing a lot about its judiciary from the major political parties that seek to control the courts through appointments. President Bush seeks to place judges in the courts with what he calls “originalists,” jurists who follow the Constitution narrowly, and who believe in the intended separation of powers.

As of now, the courts are ruled by activists robed in black, whose lifetime appointments were originally planned by the Founding Fathers as a hedge against judges becoming embroiled among the political intrigues and doings of the elected branches of government. The irony here is that, if anything, it is government that is reacting to the assertive politics of the judiciary, and its continued reinvention of constitutional law. It is a crisis that America, and the Congress, can no longer afford to ignore.