Don't Let Me Stop You

What the heck, you'll do what you want anyway.

American Royalty

Posted by Dan Draney on May 21, 2005

We all know Saudi Arabia is ruled by its “Royal Family,” but it’s happening here, too. No, we don’t mean “The Bush Dynasty” or “The Kennedys” or even “The Clintons.” Members of the American Royal Family wear black robes and hand down their laws in courtrooms. They serve for life without the risk of an election. Their word is law, at least unless contradicted by another, higher royal. Realistically, there is no other check on their power. This is where years of judicial activism are leading us, but we’re not quite there yet.

Glen at Nashville Truth links to a WaPo article quoting Sen. Pat Leahy (D-VT) as denouncing Priscilla Owen as a “judicial activist.” Glen asks:

“When did the Democrats start to support judges who believe in an originalist interpretation of legislation? The idea of these Democratic Senators opposing Priscilla Owen because she is a judicial activist is a little comical, considering their whole judicial philosophy is one of judicial activism. I guess that these liberals have seen the light and have converted to the belief that a judge should not legislate from the bench, but merely enforce a law as it is written, regardless of how they may feel about that law personally. “

We, like Glen, have our doubts about this sudden change of heart. Sen. Leahy can only get concerned about “judicial activism” by redefining the term. To him the prospect of reversal of past activism is the real problem, and that’s what he means by “activism.” For true believers like Leahy past legislation from the bench is as sacrosanct as the constitution itself. It’s not respect for judicial precedent per se that is the issue; it’s the desirability of the outcome. Overturning existing law is justified, in Sen. Leahy’s view, for a “good cause.”

But is that true? Is that the kind of country we are supposed to have? The kind we want to have? Walter E. Williams has some key insights:

“Here’s my question to you: Should we be governed by good ideas? You say, ‘Williams, what do you mean?’ Here’s an example: I regularly bike for fun, cardiovascular fitness and, hopefully, for a longer, healthier life. In my opinion, that’s a good idea. That being the case, would you deem it proper for Congress to enact legislation requiring Americans to bike regularly or perform some other cardiovascular fitness exercise? What if Congress didn’t act on this good idea? Would you deem it proper and acceptable if five out of nine U.S. Supreme Court justices, in the name of ‘evolving standards’ and promoting the general welfare, decreed that we all participate in some fitness exercise? […]

Suppose biking advocates saw no hope in getting Congress to enact legislation mandating regular biking and saw the U.S. Supreme Court as a means to accomplish their ends. Tell me your preference. Would you prefer the justices to rule along the lines they did in the recent Roper v. Simmons case, finding the execution of teenagers unconstitutional because, as Justice Anthony Kennedy speaking for the 5-4 majority said, ‘It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty’? Modified to fit my biking example, Justice Kennedy might say, ‘We acknowledge the overwhelming weight of international opinion that regular biking is a good idea.’

Or, would you prefer the justices to say, ‘We’re guided by the U.S. Constitution, and we find no constitutional authority to rule that Americans must regularly bike, despite your nonsense argument about the ‘promoting the general welfare’ clause; get out of our court’?

Whether ‘evolving standards,’ the ‘weight of international opinion’ and good ideas should determine court decisions underlies much of the ongoing conflict over President Bush’s federal court appointees. A federal court appointee who’d say his decisions are guided by the letter and spirit of our Constitution would be tagged by Democrat senators and a few Republican senators, such as Arlen Specter, as an extremist. They’d prefer justices who share former Chief Justice Charles E. Hughes’ vision that, ‘We live under a Constitution, but the Constitution is what the judges say it is.’ Translated, that means we don’t live under the Constitution; we live under tyrannical judges.”

This is what’s at stake in the battle over judicial nominees. Any selection of a particular judicial outcome based on what’s desired rather than what the law says is a step on the road to ruin for the Republic. We’ve already gone way too far down that road.

Go here for the rest of Walter Williams‘ excellent article.

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