Judicial activism afflicts other democratic countries.
The defenders of judicial activism, properly understood as the judicial usurpation of politics, count on wearing down their critics over time. Robert H. Bork is not easily worn down. He returns to the battle with a new book, Coercing Virtue: The Worldwide Rule of Judges (AEI, 159 pp., $25). Not only in America but throughout the nations of the West, judges have seized the political authority that properly belongs to the people and their elected representatives. Bork's opening chapter on this "permanent revolution" carries an apt epigraph by James Madison: "I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation." While Bork has written extensively on judicial imperialism, in these pages and elsewhere, the present book addresses the international dimensions of the problem, illustrating his argument with fascinating studies of the politics of law in the United Nations, Canada, and Israel.
"Judicial activism," Bork writes, "results from the enlistment of judges on one side of the culture war in every Western nation. Despite denials by some that any such conflict exists, the culture war is an obtrusive fact. It is a struggle between the cultural or liberal left and the great mass of citizens who, left to their own devices, tend to be traditionalists. The courts are enacting the agenda of the cultural left." Such judges belong to the New Class whose members select, reinforce, and reward one another on the assumption that they know better than ordinary people how we ought to live. They have few compunctions about making up law in order to coerce others into conforming with their understanding of virtue. Bork supplies instance after instance of this process at work in the U.S., with particular reference to the Supreme Court, and shows the ways in which we are now facing a "transnational culture war." He writes, "Courts possess very potent powers, both coercive and moral. Although that power is asserted over an entire culture, it is not always dramatic because it proceeds incrementally, but since the increments accumulate, it is all the more potent for that. What judges have wrought is a coup d'etat--slow-moving and genteel, but a coup d'etat nonetheless."
Countries belonging to the United Nations, many of them antidemocratic and downright tyrannical, cooperate with Western nongovernmental organizations (NGOs) in creating international laws in order to impose upon their countries measures that they know they could not win by democratic means. "International law," says Bork, "is not law but politics. For that reason, it is dangerous to give the name 'law,' which summons up respect, to political struggles that are essentially lawless." The international New Class is often deeply anti-American and works hand-in-glove with American NGOs that are hostile to the morality of their own society. The result is that "international law becomes one more weapon in the domestic culture war." The U.S. Supreme Court has also taken to citing the authority of foreign courts. In one risible instance, in a case having to do with delays in execution, Justice Stephen G. Breyer invoked decisions by the Privy Council of Jamaica and the supreme courts of India and Zimbabwe.
The Supreme Court appeals to a "living Constitution" and "evolving" social standards, but it is mainly the judiciary that is doing the evolving. Bork quotes Justice Antonin Scalia: "What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for two hundred years, is in fact unconstitutional? . . . Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize." Bork comments: "What we call conservatism on the Court is usually a mere holding action; liberals set the agenda and conservatives resist but rarely roll back prior liberal rulings or advance any agenda of their own. The result is a steady movement, occasionally delayed for the moment, of the Constitution to the cultural left."
Conservative Holding Actions
The chapter on Canada's 1982 Charter of Rights and Freedoms is withering. The Canadian courts have interpreted the Charter to mean that any legislation can be challenged by anyone who has shown "a general interest in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court." This practically guarantees that all issues are subject to judicial rather than political resolution. And, of course, that is what has happened with the court-imposed law regarding same-sex marriage. True, the Charter has a "notwithstanding" clause whereby the legislature can, for a time, block the implementation of court-made law. The idea of the clause is to check runaway courts, but, for complicated reasons, the clause has fallen into desuetude. The mere existence of such a checking power, Bork contends, is used to encourage judicial adventurism. "The mystique of the courts is too great," he observes. The power to challenge the courts exists on paper, but the political costs of using it are simply too high.
Israel is the supreme example of judicial imperialism securely entrenched. Bork writes: "Imagine, if you can, a supreme court that has gained the power to choose its own members, wrested control of the attorney general from the executive branch, set aside legislation and executive action when there were disagreements about policy, altered the meaning of enacted law, forbidden government action at certain times, ordered government action at other times, and claimed and exercised the authority to override national defense measures. Imagine as well a supreme court that has created a body of constitutional law despite the absence of an actual constitution. . . . Israel's Supreme Court has done them all." The court is decidedly on the side of a post-Zionism that has broken with the founding ideas of Israel. Aharon Barak, President of the Supreme Court, has blithely decreed that, in cases of disagreement, "the views of the enlightened community in Israel" must prevail, and the court gets to decide who is and who is not "enlightened." Bork's judgment is grim: "Israel has set a standard for judicial imperialism that can probably never be surpassed, and, one devoutly hopes, will never be equaled elsewhere. The sad irony is that the Supreme Court, operating with a Basic Law that specifies Israel's values are both Jewish and democratic, is gradually producing an Israel that is neither Jewish nor democratic."
Much of what Bork says in Coercing Virtue he has said before. The important contribution of the book is to put the dynamics of judicial imperialism into an international context. "If we do not understand the worldwide corruption of the judicial function, we do not comprehend the full scope of the political revolution that is overtaking the West," he writes. "The political revolution in Western nations is the gradual but unceasing replacement of government by elected officials with government by appointed judges." Perhaps the revolution was inevitable. "Wherever there is judicial review, two forces are placed in opposition: the democratic principle of the elected branches of government and the antidemocratic principle of the judiciary." Today, the antidemocratic principle is "ascendant and aggressive." "The crucial question for all nations that desire to remain self-governing is how to tame and limit the antidemocratic aggressions of their judiciaries and of the international tribunals and forums we are so blithely and thoughtlessly creating."
That is where Judge Bork leaves the matter. He undoubtedly knows that readers will complain that he does not propose a clear remedy. His job in the present book is diagnostic rather than prescriptive. It is said that it is better to light a candle than to curse the darkness. But one recalls again that, in the absence of a candle, it is sometimes important to curse the darkness, just to make sure that we do not resign ourselves to it. Both domestically and internationally, the forces advancing the judicial usurpation of politics are formidable. But so also is the core conviction of democracy that "just government is derived from the consent of the governed." It is by no means certain but one may be permitted to hope that there are still leaders possessed of sufficient wisdom and courage to give political effect to that conviction.
Copyright © 2003-2004 First Things 139 (January 2004)
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