The Myth of the Imperial Judiciary: Why the Right is Wrong about the Courts

Introduction: The Ballad of Alexander and Alexis

Introduction The Ballad of Alexander and Alexis 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. One subgenus of all the postelection commentary was particularly striking. Even as they hewed to the primary task of elevating the Texas governor to the Oval Office, a number of conservatives took the time to direct fire at a longstanding enemy, the American judiciary. Specifically, the role played by the courts in resolving the election conflict brought forth a wave of right-wing revulsion. While praising the U.S. Supreme Court for the substance of its actions reversing the prorecount rulings of the Supreme Court of Florida, conservative writers expressed real alarm that courts were deciding the conflict at all. Especially insistent here was William Kristol, the editor of the Weekly Standard. Writing in the New York Times three weeks after Election Day, Kristol set forth the basic lament: So, four decades of judicial activism, at both the state and federal levels, mostly unchallenged by the other branches of government, culminates in this: judges may now select the next president of the United States. . . . Commentators, liberal and conservative, have both largely agreed with the politicians. In their view, only the courts, especially the United States Supreme Court, have the political legitimacy to resolve the struggle over the presidency. 1 They are wrong. Now is the time to rethink decades of judicial activism , which has undermined the rule of law and enfeebled self-government .1 Two weeks later, in the Washington Post, Kristol announced what would be the reaction of “some of us” to a Gore victory based upon vote recounts ordered by the Florida Supreme Court: Some of us will not believe that Gore has acceded to the presidency legitimately . Still, if he does, he will receive our best wishes upon assuming the burdens of office. We will support his policies when we think they are right for the country. We will pay proper respect to the office of the presidency . We will hope (some will pray) that Al Gore’s presidency proves a success, and that it leaves the United States of America a stronger and better nation. But the action of the Florida court is not constitutionally defensible, and some of us will therefore continue to insist that he gained office through an act of judicial usurpation. We will not “move on.” Indeed, we will work for the next four years to correct this affront to our constitutional order. This does not mean simply—indeed it does not mean primarily —defeating Al Gore in 2004. It means defeating the understanding of the rule of law, the role of the courts, and the meaning of the Constitution that are embodied by this decision.2 In sum, as Kristol and a coauthor put it in the Weekly Standard, “the way in which Al Gore is trying to steal the election is exactly the way modern liberalism has tried to hijack the American people’s ability to govern themselves.”3 In this view, to criticize the decisions of the Florida Supreme Court and to stop at that is to miss a vast forest for a single tree, albeit a redwood. This is precisely the point of Ramesh Ponnuru, writing in the National Review: Few court rulings have been denounced as swiftly or as harshly as the Florida supreme court’s decision on the night of November 21. . . . These criticisms were correct: the Florida court did exceed its lawful powers, with astonishing inventiveness, in a case where the political stakes could hardly be higher. But the court’s many defenders had a good point, too, when they said that the justices had not departed from widely accepted legal norms. The difference between their activism and the every2 | The Myth of the Imperial Judiciary day activism of the courts is one of degree only. Yes, the decision is a scandal . But so is the legal culture of which it is a piece. If the decision has any salutary effect, it will be to draw attention to that culture’s pathologies.4 Similarly, George...