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

Conclusion: Why the Courts

Conclusion Why the Courts In the Introduction I declared that I hoped to convince readers , regardless of their political leanings, that the institution of an independent judiciary is worth defending. I think that there are two broad reasons why this is so. 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 innocence to prosecutorial discretion.) But, as I have tried to show, the judiciary ’s utility goes well beyond this. Statutes produced by legislative bodies with large memberships almost inevitably employ a certain amount of vague and general language, both to facilitate compromise among legislators and to make the statute applicable to a range of particular factual circumstances. We have placed the burden of statutory interpretation, which is the act of actually applying statutes to particular factual circumstances, upon the courts. Alexander Hamilton has already been quoted to the effect that statutes “are a dead letter without courts to expound and define their true meaning.”1 We have also seen that the popular branches of government have conferred tremendous powers upon the courts, in terms of both oversight of the administrative state and adjudication of claims arising from the numerous statutes that Congress has passed over the past several decades that allow citizens to seek court relief for a range of injuries, from racial discrimination to securities fraud. Grant Gilmore writes that, at the dawn of the modern administrative state in the 1930s, conventional wisdom 217 among legal thinkers held that “judicial power was a relic of the dead past” that would eventually yield to adjudication and problem solving by bureaucratic expertise alone, unaided by generalist judges.2 Gilmore continues : “What happened, as is frequently the case, is the opposite of what the conventional wisdom assumed.”3 Second, I think that the American polity has long realized that robust judicial power, if not actually necessary for the system to operate, is certainly conducive to its operation. In one of his addresses in which he railed against purportedly illegitimate judicial power, Lino Graglia opined that “there is no alternative to majority rule except minority rule.”4 This is not, as the saying goes, the American Way. I know of no better succinct description of the central operating principle of the American polity than what Robert Dahl termed the “Madisonian ” conception of democracy: What I am going to call the “Madisonian” theory of democracy is an effort to bring off a compromise between the power of majorities and the power of minorities, between the political equality of all adult citizens on the one side, and the desire to limit their sovereignty on the other.5 From our national beginnings, we have recognized—in principle at least—as has no other nation on Earth that, if dreadful consequences are to be avoided, majority rule cannot be a principle applied without restraint or exception. As we have seen, it was in fact the evil of “faction,” when the latter came to constitute a majority, that the framers viewed as the central problem of popular government: Indeed, it was this factious majoritarianism, an anomalous and frightening conception, for republican government, grounded as it was on majority rule, that was at the center of the Federalist perception of politics. In the minds of the Federalists the measure of a free government had become its ability to control factions, not, as used to be thought, those of a minority , but rather those of “an interested and overbearing majority.”“To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and form of popular government,” said Madison,“was the great desideratum of republican wisdom.”6 As a nation, we have understandably never been wholly at ease with the recognition that our society can produce “factions” that, when able to 218 | The Myth of the Imperial Judiciary command a majority of the people’s representatives, will do harm to relatively defenseless minorities and individuals. In the main, we are very receptive to politicians who pledge “I’m a uniter, not...