In 2009, I wrote a post entitled “Does Brown v. Board of Education constitute the Supreme Court’s one free pass?” in it, I argued that Brown represented the Supreme Court coming up with a rather badly reasoned (albeit moral) legal opinion to leapfrog over the fact that the South was not moving with sufficient speed to end segregation.
Because segregation was a great evil, the Court created a legal principle out of whole cloth in order to short-cut its destruction. Waiting for a paradigm shift in the South (which would have been reflected in the Southern ballot box) would have consigned at least one generation of blacks — and possibly many more — to a marginal, unequal existence in the United States. By issuing the Brown opinion, which led to grotesque images of white Southerners attacking black children and therefore made the public aware of the great moral wrong that continued to exist in the South almost 100 years after the South lost the Civil War, the Court jump started the Civil Rights movement.
The problem with the Brown decision, I said, is that, while it did end one evil, it created another evil, which is the notion of judge-made law:
Considering the evil that was the Jim Crow South, and considering that the system would have taken decades to die out on its own, here’s the big question: Was it a good thing that the Supreme Court jump-started Jim Crow’s death by issuing an activist decision that was both Constitutionally incorrect and factually just a tiny dent in the system, but that worked to turn America’s eyes onto a great wrong being done in its own back yard?
My answer is that, righteous though the results were, the decision was still wrong. Keep in mind that the societal benefits in Brown‘s wake were not the intended consequences of the decision. Instead, the benefits flowed from an unintended consequence: the novelty of media attention focusing on an issue most Americans had managed to disregard. In other words, it wasn’t the Court decision that brought about the change; it was the dumb luck that flowed from that decision. While the decision is viewed as carte blanche for activism, because it was followed by a successful societal change, the change flowed, not from the decision itself, but simply from the attention it garnered.
The example I focused on in 2009 to show the damage from judicial activism was the Kansas school system. There, a judge not only ruled that the schools weren’t equal, he also micro-managed precisely how equal they should be, practically down to the last pencil. In other words, he wasn’t just a judge, he also acted as a bureaucrat. The judge-managed schools were a costly disaster.
The above discussion is about the judge-made law and bureaucracy looked at from the judges’ point of view. Two articles, though, have made me aware that, of late, one specific party has decided to abandon the democratic process altogether and to rely solely on the rule of judges, whether legislative or bureaucratic.
The first article I read was about gay marriage, which has become the law in almost half of America’s states . . . thanks to judges, not the voters:
While it probably is true that perceptions are slowly shifting among the populaceen masse, such tidal changes typically take decades if not generations to show up as legislative changes, let alone constitutional ones. The wave of states legalizing same-sex marriage unions is not the result of shifting values in America, it is the result of amazingly resilient and determined activists using the courts to overturn the will of the people.
Homosexual marriage amendments (or state-constitutional bans thereof) have been placed on ballots 34 times and have been defeated 31 times. Yes, even in California Proposition 8 — an amendment to the state’s constitution that denied same-sex couples the constitutional right to marry — passed overwhelmingly. Yet California has same-sex marriage. Why? How is that possible if the masses spoke, and in California’s case spoke loudly?
What’s happening in state after state is not the citizenry is giving its seal of approval to same-sex marriage — in fact, we are doing quite the opposite. Then once a measure fails lawyers funded by activists file lawsuits and begin a legal process. If and when the first attempt fails they file an appeal and try again. And again. And again. These lawsuits run up through the court system until finally landing on the desk of a judge sympathetic to the cause. That judge then takes the will of the people as expressed through the ballot box and with the stroke of a pen throws it out.
The will of the people is becoming subordinate to the will of the judges thanks to the Democrats’ endless forum shopping. I’m not saying here that the judges have decided rightly or wrongly, I’m just saying that we have a dangerously undemocratic confluence of judges who, since the 1950s, see themselves as moral arbiters, and Democrats who have decided that, because the ballot box in our republican democracy is controlled by Bible-thumbing gun-clutchers, these activist judges should decide all of the day’s pressing issues. This is profoundly undemocratic.
This Democrat trend, to turn to judges rather than the people to advance a political agenda, is also reflected in the increased use of judges to destroy political candidacies. Barack Obama famously brought down his opponents in Chicago through courthouse shenanigans rather than through a direct appeal to the will of the people. Texas Democrats, too, are famous for trying to destroy Republican politicians through lawsuits, with the manifestly spurious criminal suit against Rick Perry being only the most recent example.
Scott Johnson has assembled a bushel-full of quotations from people on both the left and the right side of the aisle excoriating the suit against Perry. The left is abandoning democracy on a judge by judge basis.