The Judicial Usurpation of America?

March-April 1997

By James W. Skillen

WASHINGTON, D.C.—Editor Richard John Neuhaus unleashed quite a storm with last November's issue of First Things magazine. Apparently without letting his editorial board know what he was doing, he published essays by Robert Bork, Charles Colson, Russell Hittinger, Hadley Arkes, and Robert P George in support of the editors' claim that, "What is happening now [in the U.S.] is the displacement of a constitutional order by a regime [a judicial oligarchy] that does not have, will not obtain, and cannot command the consent of the people."

Some of Neuhaus's editorial advisers resigned and others complained vociferously because of the arguments in that issue. Reactions were so heated that the editors returned to the subject in the January 1997 issue, publishing negative and positive responses from William J. Bennett, Midge Decter, James C. Dobson, Mary Ann Glendon, and John Leo.

While the arguments and counter-arguments cannot easily be summarized, the major thrust of the November symposium was to say that federal courts, led by the U.S. Supreme Court, have in recent decades simply dictated more and more laws. Particularly with regard to abortion, suicide, and homosexuality, the courts have acted to undermine democracy itself, say the editors. Lawmaking, however, rests with the legislative branches of government in our constitutional system. Therefore, the time may have come, or is soon coming, when citizens will have to consider whether to refuse complying with unjust laws and even to commit acts of civil disobedience.

Use of the word "usurpation" in the symposium title strongly suggested that a small legal elite has somehow managed to steal power from the people without the latter knowing or supporting that theft. What is needed, say the editors, is the recovery of the original, constitutional regime in which the people, who "are incorrigibly, however confusedly, religious," will be able to act democratically once again.

What was largely missing from the November symposium was the emphasis, later articulated by Mary Ann Glendon, that "the courts could never have carried off that power grab were it not for pathology in other parts of the body politic." The crisis, in other words, is system-wide and requires a response that aims for long-term reform of the entire political-legal order. In fact, the November symposium in First Things failed to sort out different levels of the problem. One part of the "crisis" has to do with the courts overstepping the boundaries of their constitutional authority. Another concerns the principles of legal judgment being used by current judges: are they, indeed, over-emphasizing "individual liberty" at the expense of the common good? Another ingredient is the present composition of the courts: would the system be working well if, for example, we had judges who held Robert Bork's view of law, society, and democracy?

It seems to me that Neuhaus, Colson, and others have jumped too quickly to consider tactics of resistance. They overestimate both the extent to which the majority of the American people share a religious and moral consensus as well as the degree to which a small legal elite holds unchecked power.

The presupposition of the symposium seems to be that a majority consensus regarding higher law, natural law, and moral obligation to God exists in this country. Yet few Christians and Jews can agree on precisely what this means for specific legislative acts and judicial judgments. Neuhaus and company will find it difficult enough to round up a consensus even about how to resist judicial usurpation.

If "the people" are, indeed, going to fulfill their democratic responsibilities, then real political reform, including significant electoral reform, is needed. Democracy has eroded not primarily because the judiciary has claimed too much authority but because our electoral, interest-group, and party systems no longer make possible a genuinely representative government.

Finally, one senses in the Neuhaus symposium the kind of impatience exhibited by James Dobson, Pat Robertson, and Jerry Falwell for nearly two decades. The country supposedly belongs to the moral-religious majority, which is now discovering that something is very wrong with America. They feel angry that their voices no longer carry the weight they once did. Something must be done quickly or all will be lost.

This kind of impatience needs to be displaced, it seems to me, by a thorough, steady, long-term endurance that characterized early Christians, medieval Jews, African-American slaves, civil rights reformers, and Christians in places such as China today. This is not to say that Judeo-Christian ingredients in the American heritage carry no more weight in our society than they did in ancient Rome. Rather, it is to suggest that the changes which have produced our current cultural, political, and legal difficulties did not arise suddenly and they will not be reformed overnight. Now is the time for self-criticism, comprehensive rather than piecemeal assessment of our constitutional system, and the development of long-term strategies for reform rather than short-term reactions to only one part of the crisis.