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The Myth of the Imperial Judiciary

Why the Right is Wrong about the Courts

Mark Kozlowski, Anthony Lewis

Publication Year: 2003

Few institutions have become as ferociously fought over in democratic politics as the courts. While political criticism of judges in this country goes back to its inception, today’s intensely ideological assault is nearly unprecedented.

Spend any amount of time among the writings of contemporary right-wing critics of judicial power, and you are virtually assured of seeing repeated complaints about the “imperial judiciary.” American conservatives contend not only that judicial power has expanded dangerously in recent decades, but that liberal judges now willfully write their policy preferences into law. They raise alarms that American courts possess a degree of power incompatible with the functioning of a democratic polity.

The Myth of the Imperial Judiciary explores the anti-judicial ideological trend of the American right, refuting these claims and taking a realistic look at the role of courts in our democracy to show that conservatives have a highly unrealistic conception of their power. Kozlowski first assesses the validity of the conservative view of the Founders’ intent, arguing that courts have played an assertive role in our politics since their establishment. He then considers contemporary judicial powers to show that conservatives have greatly overstated the extent to which the expansion of rights which has occurred has worked solely to the benefit of liberals.

Kozlowski reveals the ways in which the claims of those on the right are often either unsupported or simply wrong. He concludes that American courts, far from imperiling our democracy or our moral fabric, stand as a bulwark against the abuse of legislative power, acting forcefully, as they have always done, to give meaning to constitutional promises.

Published by: NYU Press

Contents

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pp. vii-

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Foreword

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pp. ix-xiv

Political criticism of judges in this country goes back at least as far as Thomas Jefferson, who called federal judges “sappers and miners” working to undermine the constitutional system. (He did not like Chief Justice John Marshall’s expansive view of federal power.) From time to time ever since, judges have been political targets. In the 1930s, there was President Franklin Roosevelt’s struggle with the “nine old men,” as critics called them, who had held some of his New Deal legislation unconstitutional.

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Acknowledgments

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pp. xv-

I would not have had the opportunity to undertake this project were it not for the support of three institutions. The Brennan Center for Justice at New York University School of Law provided me with a supportive environment in which to write the book and indulgently allowed me to expend a great deal of time in order to complete it. Two foundations— The Open Society Institute and the Deer Creek Foundation—graciously funded the Center’s Judicial Independence Project so that the book could be written.

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Introduction: The Ballad of Alexander and Alexis

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pp. 1-10

The aftermath of the 2000 presidential election was extraordinary by any measure. In the wake of the inability of Florida’s electoral technology to record or count votes accurately, the nation was subjected to several weeks’ worth of courtroom and public relations combat conducted at a fever pitch. Any number of commentators began using terms, such as “putsch” and “coup d’etat,” that are not often introduced in American political discourse.

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1 The Imperial Judiciary and Its Malcontents

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pp. 11-50

Mark Tushnet is a well-known professor of constitutional law at Georgetown University. In 1998, he published an article in the venerable democratic socialist quarterly Dissent entitled “Is Judicial Review Good for the Left?” He began by expressing puzzlement that “[m]any liberals have warm and fuzzy feelings about judicial review,” the power according to which courts may declare statutes to be unconstitutional and void.1 Such feelings, he asserted, were quite unwarranted: ...

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2 The Constitution and the Judiciary

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pp. 51-85

The era of the American Revolution saw the greatest concentrated burst of constitution making in history, at least before the implosion of the Eastern Bloc in 1989. In the wake of the outbreak of armed struggle with the British Empire, each of the thirteen American states formed a new constitution, usually after engaging in extensive debate as to the proper form of popular government. This experience of course culminated in the creation of the federal Constitution by the Philadelphia ...

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3 The Judiciary in History

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pp. 86-116

It is a persistent theme of the Imperial Judiciary thesis that the power wielded by American courts over the past forty or so years is orders of magnitude beyond that exercised by courts for any sustained period ever before in our history. Recall Nathan Glazer’s declaration in “Towards an Imperial Judiciary?” on what judicial power has become: “The courts have truly changed their role in American life. . . . [They] are now far more ...

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4 The Judiciary and the Extent of Rights

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pp. 117-149

Harvard University’s 1978 commencement address was delivered by Alexander Solzhenitsyn, who was then still in the early years of his enforced exile from the Soviet Union. Solzhenitsyn delivered a jeremiad that received headlines around the world for its assessment of a West that had “lost its civil courage” in the struggle against Communist expansionism, a loss “particularly noticeable among the ruling groups and the intellectual elite, causing an impression of loss of courage by the entire society.” 1

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5 The Judiciary and the Politics of Rights

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pp. 150-176

In his memoir of his tenure as Ronald Reagan’s solicitor general, the Harvard law professor Charles Fried declared that, for the Reagan administration, Roe v. Wade1 was “the symbol of all that had gone wrong in law, particularly in constitutional law.”2 Somewhat famously, Robert Bork has declared that, in the entire Roe opinion, which runs for more than fifty pages in the U.S. Reports, “there is not one line of explanation, not one sentence that qualifies as legal argument.”3

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6 The Judiciary and the Polity

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pp. 177-216

The Laws is Plato’s longest and far and away his most tedious philosophical dialogue. Plato’s aim in the Laws, as in the more widely read Republic, is to set forth the workings of an ideal state. In contrast to the Republic, however, the Laws posits a state that is meant to be an attainable ideal. It is to be governed not by a cadre of philosopher-kings but, as the title suggests, by a legal code.

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Conclusion: Why the Courts

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pp. 217-220

First, from the beginnings of the American republic, we have simply found a vigorous judiciary to be useful. Most obviously, this has been true with respect to the necessity of resolving private disputes between citizens and for the trying of criminal defendants. (I take it to be uncontroversial that judicial resolution of the former is preferable to flipping a coin and that criminal trials are preferable to leaving the determination of guilt and ...

Notes

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pp. 221-283

Index

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pp. 285-292

About the Author

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pp. 293-


E-ISBN-13: 9780814748596
E-ISBN-10: 0814748597
Print-ISBN-13: 9780814747759
Print-ISBN-10: 0814747752

Page Count: 304
Publication Year: 2003

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Subject Headings

  • Political questions and judicial power -- United States.
  • Courts -- United States.
  • Justice, Administration of -- United States.
  • Conservatism -- United States.
  • United States -- Politics and government -- 1989- .
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