Levin, Mark R. Men in Black. Washington: Regnery Publishing, 2005. ISBN 0-89526-050-6.
Let's see—suppose we wanted to set up a system of self-government—a novus ordo seclorum as it were—which would be immune to the assorted slippery slopes which delivered so many other such noble experiments into the jaws of tyranny, and some dude shows up and suggests, “Hey, what you really need is a branch of government composed of non-elected people with lifetime tenure, unable to be removed from office except for the most egregious criminal conduct, granted powers supreme above the legislative and executive branches, and able to define and expand the scope of their own powers without constraint.”

What's wrong with this picture? Well, it's pretty obvious that it's a recipe for an imperial judiciary, as one currently finds ascendant in the United States. Men in Black, while focusing on recent abuses of judicial power, demonstrates that there's nothing new about judges usurping the prerogatives of democratically elected branches of government—in fact, the pernicious consequences of “judicial activism” are as old as America, winked at by each generation of politicians as long as it advanced their own agenda more rapidly than the ballot box permitted, ignoring (as politicians are inclined to do, never looking beyond the next election), that when the ideological pendulum inevitably swings back the other way, judges may thwart the will of elected representatives in the other direction for a generation or more.

But none of this is remotely new. Robert Yates, a delegate to the Constitutional Convention who came to oppose the ratification of that regrettable document, wrote in 1788:

They will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul [sic] their adjudications. From this court there is no appeal.
The fact that politicians are at loggerheads over the selection of judges has little or nothing to do with ideology and everything to do with judges having usurped powers explicitly reserved for representatives accountable to their constituents in regular elections.

How to fix it? Well, I proposed my own humble solution here not so long ago, and the author of this book suggests 12 year terms for Supreme Court judges staggered with three year expiry. Given how far the unchallenged assertion of judicial supremacy has gone, a constitutional remedy in the form of a legislative override of judicial decisions (with the same super-majority as required to override an executive veto) might also be in order.

May 2005 Permalink