Judicial Imperialism: The Supreme Court’s Abuse of Power

Do we have an imperial judiciary? To put the question in more manageable form: What at this time, in our system of government, are the actual, effective limits on what our judges can do? Specifically, what are the limits on what the Supreme Court can do, acting in the name of constitutional law? We know that judges can order the reapportionment of our legislatures, state and federal; remove most restrictions on the availability of abortion and on the distribution of materials historically considered obscene; prohibit prayers and devotional Bible reading in public schools; and require the transportation of public school children in order to increase racial mixing in the schools. And we now know that a judge can even require that a neutered male be permitted to compete in the women’s division of the United States Open Tennis Tournament. The British Parliament, it used to be said, can do anything but make a man a woman; this limitation, it appears, does not apply to our judges. The list could easily be extended, but this is surely enough to show that the question is a serious and important one.

The basic theoretical limit on the power of courts—the basic argument used to reconcile judicial power with elected, representative government—is, of course, that judges can do no more than apply and, if need be, interpret the law: preexisting, authoritatively established statements of rules and requirements. As Justice Roberts put it in his famous statement in the Butler case (1936), judges in constitutional cases merely place the challenged statute alongside the relevant constitutional provision and see whether the two square. (A carpenter could do it.) Justice Roberts wrote:

LG

About the Author

Lino A. Graglia

Do we have an imperial judiciary? To put the question in more manageable form: What at this time, in our system of government, are the actual, effective limits on what our judges can do? Specifically, what are the limits on what the Supreme Court can do, acting in the name of constitutional law? We know that judges can order the reapportionment of our legislatures, state and federal; remove most restrictions on the availability of abortion and on the distribution of materials historically considered obscene; prohibit prayers and devotional Bible reading in public schools; and require the transportation of public school children in order to increase racial mixing in the schools. And we now know that a judge can even require that a neutered male be permitted to compete in the women’s division of the United States Open Tennis Tournament. The British Parliament, it used to be said, can do anything but make a man a woman; this limitation, it appears, does not apply to our judges. The list could easily be extended, but this is surely enough to show that the question is a serious and important one.

The basic theoretical limit on the power of courts—the basic argument used to reconcile judicial power with elected, representative government—is, of course, that judges can do no more than apply and, if need be, interpret the law: preexisting, authoritatively established statements of rules and requirements. As Justice Roberts put it in his famous statement in the Butler case (1936), judges in constitutional cases merely place the challenged statute alongside the relevant constitutional provision and see whether the two square. (A carpenter could do it.) Justice Roberts wrote: