The New Neo

[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.