The Democrats’ America : Rule by Judges

Judge and gavelIn 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.

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  • Ymarsakar

    Did people expect Democrats and lawyer unions to be for good and righteousness?

  • JKB

    I wish I had kept the link. I read an older post that described how a cadre of lawyers started working against America back in the 1970s. I now see it is a guerrilla war. They hide amongst the people, strike when opportunities arise then melt back into the populace.

    As with all guerrillas, the counter-insurgency methods that work best are turning the populace against the guerrillas rather than trying to strike directly at them. Of course, if caught out in the open in court, then by all means eliminate them but care must be taken not to incur to many “innocent” casualties.

    As for gay marriage, I suggest starting a quiet move to reinstate the sanctity of marriage by restricting divorce and turning people against adultery.

  • Charles Martel

    I agree with JKB that one way to counter the radical gay movement’s debasement of the coin of marriage would be to make it hard to get divorced or be unfaithful. But I fear it would never be given a chance to work, given how far downward the courts have defined marriage. Because the entire definition of homosexual marriage is based upon the voluntary association of two people, forbidding them to separate as easily as they came together would be a non-starter. There would be no shortage of judicial cretins to strike down even the faintest of feints in that direction. (Let’s not even get into the use of loaded Christianist words like “sanctity.”)

    Even more problematical is the homosexualists’ insistence that despite their acts being as normative as heterosexual acts, their sex drives and needs are different . . . namely the need to be promiscuous in order to properly honor their natures. Thus, the definition of adultery could not be allowed to apply since fidelity, at least among male homosexuals, generally isn’t held in high regard. The lesson here is that you are as normal as everybody else—except when you choose not to be.

  • Michael Hiteshew

    I think judicial activism really got off the ground with Miranda. The court fabricated Miranda Rights out of whole cloth. They did not exist before that case, they did after. Regardless of the merits, the Constitution is clear that all legislation originates in the House. Not the courts. They’ve been way beyond their constitutional powers for a long time now.

    • JKB

      Actually, the rights existed and exist even if the police fail to Mirandize a suspect. The courts fabricated the notification.

      Even in terror suspect cases where they agonize over whether to Mirandize before questioning, the rights still exist and the hand wringing is over notification.

      Even in the CIA torture debate, the suspects always had a right to remain silent. The debate was simply how hard the interrogators could test their ability to remain silent.

  • Libby

    Excellent post, Book! I officially lost faith in our court system when SCOTUS upheld Obamacare (with them helpfully redefining the penalty for not getting health insurance a “tax”).

    I’d say a cousin to this is the way in which activist groups now sue federal agencies over their regulations, and then “settle” with these agencies, where the settlement includes implementation of the activist group’s preferred regulations. Worse, the feds are actually colluding with the activists groups to use this sue-then-settle dance as an excuse to do radical things they couldn’t get away with on their own,

  • qr4j

    In his bid to become US Senator from Illinois, Obama took out TWO political opponents through the courts. In the primary, his pals had another Democrat’s divorce records unsealed. His opponent was Blair Hull (I think that is the spelling), who was beating Obama in the opinion polls ahead of the election. In the general, his pals had Republican Jack Ryan’s divorce records unsealed. Jack Ryan had given up a lucrative career to go teach inner-city kids.

    The Rick Perry indictment is an absolute farce. Perry insisted that a public official in charge of ethics investigations resign after she was convicted of DUI — with three times the legal limit of alcohol in her system. She served 45 days in jail. He said resign or he would veto the ethics agency’s budget of millions of dollars. Seems reasonable to me.

    The gay marriage thing: I personally don’t have a problem with gay marriage. But it opens up a whole big legal can o’ worms. It changes the traditional definition of marriage. What is to keep the definition from changing further? Polygamy has been around a lot longer than the concept of gay marriage. Currently our legal system is not set up to handle claims of divorce in a polygamous marriage.

    Think that is a silly point? Tell me who gets the kids, who pays the alimony, who gets divorced from whom. Is a woman married to ALL the partners in a polygamous arrangement? What if the woman is married to two men and they are married to two women? These are very concrete questions — not abstractions!

  • Wolf Howling

    Newt Gingrich was maligned in 2012 for his positions on reform of the legal system, but he was right in virtually all particulars. We’ve tried to draw a careful line for the past 200 years to insure that judges are insulated from politics, but that is an experiment that I think we can all agree has failed. And it is well worth remembering that the whole concept of judicial primacy to interpret the Constitution and declare Constitutional law is judge made, it is not a power enumerated in the Constitution.

    When Court’s feel free to decide social issues that should solely be left to the majority of voters, it is time for reform. When anyone who would be a judge embraces a “living constitution” and feels free to rewrite it per their whim and without the need for using the methods for altering the Constitution set forth in that document, it is time for reform. When the Court upholds a system that allows unelected bureaucrats to promulgate laws that are never voted on by our elected representatives, it is time for reform. When the Court decides that Judeo-Christian mores are no longer a legitimate basis for law in our country, then it is time for reform.

    I could go on and on here, but you get the gist The Courts are out of control. Indeed, I think that they are the single greatest threat to our nation. Newt had it right on all of that, as well as on how to reform it. The British method, where Parliament has primacy and anything they pass is de facto Constitutional, has its own fatal problems. Newt’s middle ground, with Congressional oversight and a two/thirds majority of Congress needed to overturn a decision of Constitutional law, is not perfect, but it is exponentially better than what we have.

    • Ymarsakar

      Andrew Jackson was told by the Court to enforce a treaty governing foreigners that refused to be admitted as a member state and were soon going to be cleaned out by Georgia’s militia. So Jackson told the Court to enforce their own policies.

    • Ron19

      Today I got dropped halfway through jury selection, again. While the judge was doing his initial interview and got to me, I answered his questions about my qualifications and then brought up an issue about being able to hear everybody concerned, everybody except the prosecuting attorney. The judge assured me that that potential obstacle could be easily overcome. I think I ticked off the prosecutor because when it became her turn to question the jurors, she started off by saying that she would be sure to be heard by all of us as she looked pointedly at me. At that time, and several others, she glared at me, but never addressed any questions to me, as if she was deliberately avoiding me. After a while I decided that she was going to drop me off the jury, and she did.

      The other time I made it to the jury box, I had seen the movie “Outrage” again about a month earlier, and while the judge was explaining that we had to base our decision on the law as written not as we thought it should be, because of the movie I asked the judge, “What if we think the law is unjust?” He answered my question and asked me if I could live with it his way, to which I said I thought I could; I also noticed that the prosecutor made a mark on my Post-It on her jury sheet, and was pleasant to me, but dropped me anyway.

      Today, the judge went through his spiel about deciding based on the law as written. He pointed out that he thought there were laws that were wrong, but he was required to go with existing law as written, whether acting as judge or juror. Besides, he pointed out that it is easy to get the law changed. I didn’t say anything this time, but it occurred to me a few minutes later that if it is so easy to get the law changed, why are we stuck with so many bad, even unjust laws?

  • jj

    I disagree with your assertion that Brown began – or even advanced – the notion of judge-originated law. It began long before that. The courts have been power-hungry, looking to expand their role, and nothing but a problem to all the rest of us right from Day One.

    In the Judiciary Act of 1789 the first federal congress set up the court system with federal district courts to do the actual heavy lifting, appellate courts to try to correct whatever idiocy they’d promulgated; and the supreme court on top of the triangle to make a last ditch attempt to unf***-up what the first two did.

    (It should be noted and never forgotten that right from the git-go this nonsense violated James Madison’s pledge during the ratification battle that the federal government would mind its goddam business, stay out of yours, and leave the judiciary bits to the states, the federal government having no need for and therefore being willing to get along without courts. No federal courts. SURPRISE, SURPRISE, SURPRISE, American people! Your goddam federal government – the very first one – on practically the very first day, LIED TO YOU! “I’m shocked, shocked, to find out there’s gambling…” yeah. We were off to a great start.)

    They got away with it because the first congress consisted mostly of Federalists, so they were gratified. They didn’t understand the way the country was supposed to work, of course; but hell, most federal officials and elected halfwits since then, right up to the occupier of the oval orifice at this moment haven’t either, so that’s fine.

    Along with setting up the framework for us to drown in this BS for all time, the Judiciary Act contained another section which would bite us in our collective ass for all time, too. Section 25 said questions of federal law – including constitutional law – could be appealed from state supreme courts to the federal one. This was constitutionally nonsense right then, before the ink dried. It still is, and has been controversial on numerous occasions throughout American history.

    (And, just as an amusing hysterical sidelight, the supreme court got off to a good, solidly dishonorable start, too. The first case of any significance it heard on the issue of federal power was a thing called Ware v. Hylton in 1796. The issue was a Virginia law of 1777 that was meant to stop British creditors from collecting on Virginia debtors. The attorney for the Virginians was John Marshall, who had no compunction about taking a case even though he had a substantial personal interest – an interest adverse to his clients! – in the outcome. Which was okay, he was a lawyer and a weasel and you wouldn’t expect him to withdraw, but the sad fact is it didn’t occur to one, not one, of the geniuses on the bench that maybe he ought to step aside off the case, either. You know, in the interests of… that stuff. Whaddaya call it? That thing, you know…. yeah, justice that’s it! That’s the one! So we were off to a terrific start.)

    So there you go, in Ware v. Hylton the court helped itself, and nullified a state statute. (Hi – Proposition 8!) First shot out of the gun. In the subsequent Hylton v. United States also of 1796, they declined to nullify a federal statute – but they did, with no trace of legitimacy, give congress greater discretion in levying taxes than anything the ratifiers (who were very much alive, standing there, scratching their heads and saying: “what the f***?”) had intended.

    Hell, in 1793 the court (Chisholm v. Georgia) claimed jurisdiction over a sovereign state! Not just the jurisdiction to tinker with and rewrite its laws – but jurisdiction over the whole damn thing! The claim was made that Georgia owed money to a dead South Carolinian’s estate, and Georgia refused – quite rightly, incidentally – to the federal court hearing the case. So the supreme court issued a default judgment against Georgia for failure to appear! And two of our almighty geniuses (Chief John Jay and Associate James Wilson) denied that Georgia was sovereign in its relations with the union.

    Since the whole thing is such an amazing argument for adults to have, I’ll line it out for you as follows. The Constitution, Jay and Wilson held, was the creation of one American people. Justice James Iredell, on the other hand, denied that the federal court had jurisdiction over the case at all. (On the whole he was right.). Georgia did not allow such suits in its own courts, which meant federal courts had no authority to just bust on in there, say: “oh yeah?” and do it anyway. Justice John Blair countered that when the states ratified the constitution they agreed to be amenable to such suits in federal courts. (Completely forgetting, if he ever knew, that Madison sold ratification at least in part on the basis that there would be NO federal courts – so what the hell do you think you’re talking about, Blair?) Justice William Cushing affirmed that in giving the federal courts jurisdiction over suits between states (really? Madison said there were no federal courts. Where is this jurisdiction granted?) the constitution assumed (in an emanation from a penumbra, no doubt) that states might be defendants in federal courts. (Oh, there you are, Proposition 8.)

    Wilson went even further. He made fun of “the haughty notions of state independence, state sovereignty, and state supremacy,” thereby establishing once and for all that the silly son of a bitch had no understanding on the most basic level of what the country was supposed to be about. (How did we avoid making him emperor, instead of merely a justice on the supreme court?)

    So I’m afraid I don’t think Brown was the start of much of anything. We’ve been at the mercy of self-important bastards in ball gowns for well over200 years, who do what they feel like doing, for reasons that they feel are good – and the hell with all of you.

  • jj

    Oops – started the italics, forgot to stop ’em. Sorry!