The judge-emperor
[Hat tip: commenter “Barry Meislin.”]
With the growth of the imperial judiciary here as a result of the left’s reaction to Trump’s presidency, it has occurred to me that our judges are starting to resemble the leftist judges of Israel, who have runaway power. Only our Supreme Court stops our leftist judges, and that’s only because SCOTUS currently leans right. All it would take would be a few appointments by a Democrat president to change that.
Here’s an article that deals with such issues, and adds the court system of France to the mix:
From Israel to the United States, via Europe, the judicial coup d’état has become permanent. In the West, it is not the executive that threatens the separation of powers. It is faceless judges lacking democratic legitimacy who legislate on the pretext of judging. Here are four salient examples of this judicial imperialism — which have become a judicial tyranny — and a proposed American solution. …
In the 1980s and 1990s, the Israeli Supreme Court introduced three innovations that revolutionized Israel’s legal and political landscape. First, it abolished the “standing” requirement, allowing anyone to challenge any government decision before the Supreme Court simply because they disagreed with it, even if they were not personally affected by it. This is unique in the Western world. Second, the Court removed the restriction on justiciability, placing all government and administrative actions (including foreign affairs, military actions and the budget) under its control — an extraordinary measure. Third, the Court took on the power to assess the “reasonableness” of government decisions, thus giving itself a political veto over the elected government’s choices.
When you read about how Netanyahu has tried to reform the Israeli court system, remember those points because they are extraordinarily important in understanding the extent of the power the Israeli Supreme Court has seized for itself.
The article goes on to discuss France and the ban on Le Pen:
There is effectively no longer a single “right-wing” measure that can be adopted in any field by Parliament or the government without being struck down by the Constitutional Council or the courts. When the left loses at the ballot box, it is certain to win in the courts. In France, the judge reigns and the people no longer seem to have sovereignty over anything.
That may be an exaggeration, or perhaps not. I’m not as familiar with the French system, but I wrote about the Le Pen ban in this previous post.
On Europe and immigration:
The torrents of universal rules and requirements deriving from articles of the European Convention on Human Rights (e.g. privacy, dignity), and the rulings of the European Court of Human Rights are probably the worst modern example of tyrannical judicial imperialism. The anarchy of immigration in Europe is entirely of its making. Since the rulings of the imperial European Court of Human Rights are deemed to be the “official interpretation” of the text of the European Convention on Human Rights, they are imposed on all European states (except Russia, Belarus and Vatican City) as supreme law, which no parliamentary majority can overturn. So much for “democracy.”
In discussing the US, the author cites the recent CASA decision in which SCOTUS largely limited the ability of district court judges to issue nationwide injunctions. This functions as a correction of a national trend in the US towards an imperial judiciary, but much more is needed to solidify the gains.
In summary:
The role of the judges is to enforce the law in the face of the disputes brought before them. Any attempt to legislate in place of democratic bodies is dictatorial, and a negation of national sovereignty, as well as the separation of powers.
But as the left loses power with the voters it turns to the courts in which leftist judges can advance the left’s agenda. It’s easier to not have to deal with the electorate at all, and the only corrective is the appointment of more judges who are not on the left. Once judicial power becomes entrenched, it’s very difficult to reverse course. Attempts to do so tend to be met with cries from the left of “imperial presidency!” and “dictatorship!” But, as Barrett’s opinion in CASA stated:
“Justice Jackson decries an imperial Executive while embracing an imperial Judiciary,” Barrett wrote. “No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so.”
She continued to suggest that Jackson should “heed her own admonition.”
“‘[E]veryone, from the President on down, is bound by law,’” Barrett wrote, quoting Jackson. “That goes for judges too.”
But not for judge-emperors.
This why I wish Judge Thomas would step down now. He is a fantastic Judge, but if he waits too long, Dems have a better change in blocking a replacement. Or appointing one of their own.
The judicial branch is the weakest and its power rests on sufferance. They are rapidly burning through the trust in them built up over centuries, and they will not like what happens when our patience is exhausted and their writs begin to be ignored.
They have decided they will cut down the laws to get at the devil, and imagine they will stand up in the winds which will blow then.
“to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
When it suits their agenda, the Left champions democracy but never the rights inherent to a republic.
“Democracy is nothing more than mob rule, where 51% of the people may take away the rights of the other 49%.” Jefferson
Whereas, Franklin was referring to the ‘remedy’ inherent to a republic if and when it becomes “destructive of these ends” when he stated, “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!”
“Violence, naked force, has settled more issues in history than has any other factor, and the contrary opinion is wishful thinking at its worst.” R.A. Heinlein
No sober minded conservative wishes to settle our differences through naked force. Yet it is in the nature of the ideological fanatic to force it upon us.
Not that I’m advocating such – the environment to accept such a thing on large scale would bring devastation rather than relief – but assassination is not subject to appeal.
I think Justice Thomas is irreplaceable because of his combination of common sense and intellect, if the Republicans keep the Senate then he might retire but i doubt it
Rehnquist was poorly replaced by Roberts maybe the quality of clerks is at fault how else is something so patently obvious so rare 1: 4 probably
“They have decided they will cut down the laws to get at the devil…”
Well yes, except in this case, “[t]hey have decided they will cut down the laws to get at [their stalwart and determined political enemy, a man they have unceasingly slandered, traduced, framed, persecuted and defined as being] the devil…”
In fact, the devil must be feeling pretty proud of himself regarding the behavior of the Democratic Party…
Democrats don’t give up without kicking, scratching, and biting. When they have the Majority, they do what is politically necessary to kneecap the opposition, using committees to cast aspersions 5 minutes at a time. Of course, none of it is possible without the help of the newsmedia. And they don’t seem to care what it does to the credibility or trust, it’s always the “nuclear option”.
I know he’s doing his best, but does anyone believe James Comer can deliver the “goods”?
I have not heard this anywhere, but it seems obvious that the Democrats long to make the Trump administration act “above the law”, since they see that as proven to be resonating with the average American.
Trouble is, appealing a decision is not acting above the law, as it is perfectly lawful behavior! Worse, when Trump succeeds on appeal, it is easily misunderstood as a permanent victory, which it sometimes isn’t. This is driving the Dems crazy… and it’s a short drive!
So this lawfare strategy needs to be understood for what it is, an effort to force Trump to defy the courts, and be seen to do so! That is why there seems to be no limit to the lengths Dems will stretch the law. They know that once they can force Trump to tell a court to go to hell, they can start using their favorite meme again – Trump thinks he is above the law!
I keep using the term Commissar Judge for these Judges. It’s to me what a political Commissar in the Soviet Union would do. Every decision of a political or military officer has to make sure the political Commissar was in line with that decision.
This seems to be a winning process, especially here until something happens to these who continually rule against the government then get overruled again and again. Getting any impeached won’t work having the Democrats/ Marxists to let them do their bidding.
I keep using the term Commissar Judge for these Judges. It’s to me what a political Commissar in the Soviet Union would do. Every decision of a political or military officer has to make sure the political Commissar was in line with that decision.
This seems to be a winning process, especially here until something happens to these who continually rule against the government then get overruled again and again. Getting any impeached won’t work having the Democrats/ Marxists on their side to let them do their bidding.
If Sonia Sotomayor says you’ve gone too far left, you’ve gone too far left.
It seems Robert Bork chronicled the beginning of this in “The Tempting of America”. (But this is above my pay grade.)
I think some of it has to do with the reliance on an “expert” class that emerged over the course of the 20th century. This is especially true in the “civil law” countries like France, but in America we also tend to put judges, especially federal judges and especially SCOTUS judges, on a pedestal and assume they’re smarter than everybody else. (Working in the legal field is the antidote to believing that judges are superhuman geniuses.) And if they’re smarter than everybody else, shouldn’t they get the final say in everything? (Of course not, but I think that’s how some people really feel deep down.)