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Bench Memos

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Judges and Democracy



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Over at “Mirror of Justice,” I have a post in response to Philip Kennicott’s essay in today’s Washington Post, “Judge Not.” He asks whether (what the author sees as) the outbreak of hostility to the persons and work of judges in popular discourse–particularly among religious conservatives–should worry Catholics, academics, and others who–like judges–inhabit spheres that are “protected” from the “leveling power of untrammeled democracy.” In response, I suggested (among other things) that “[t]he complaint about judges is (or, at least, should be) not that they are judges, or that they are not elected, or that their rulings go against popular opinion; it should be that some are handing down excessively ambitious and legally incorrect rulings in contexts and with respect to issues to which their authority does not properly extend. To think that not-democratically-accountable power is worrisome in some contexts (for example, the debate over whether or not a community should embrace a sweeping abortion license) is not (necessarily) to endorse “democracy” all other contexts (for example, the debate over the divinity of Christ).”



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