I love First Things, the mostly Catholic opinion journal, not least for Father Richard Neuhaus' monthly Public Square column. Neuhaus has been banging the End of Democracy drum for over a decade, including this December 2003 column. I particularly liked Neuhaus' summary of Texas law professor Lino Graglia's take on the problem:
In instance after instance, [Lino A. Graglia] writes, the Court is addressing not constitutional law but “policy choices,” and, in instance after instance, the Court decides that it knows best. Here is Graglia at cruising speed: “Virtually every one of the Court’s rulings of unconstitutionality over the past fifty years—on abortion, capital punishment, criminal procedure, busing for school racial balance, prayer in the schools, government aid to religious schools, public display of religious symbols, pornography, libel, legislative reapportionment, term limits, discrimination on the basis of sex, illegitimacy, alien status, street demonstrations, the employment of Communist-party members in schools and defense plants, vagrancy control, flag burning, and so on—have reflected the views of this same elite. In every case, the Court has invalidated the policy choice made in the ordinary political process, substituting a choice further to the political left. Appointments to the Supreme Court and even to lower courts are now more contentious than appointments to an administrative agency or even to the Cabinet—matters of political life or death for the cultural elite—because maintaining a liberal activist judiciary is the only means of keeping policymaking out of the control of the American people.”
Graglia notes that in some of its most controversial decisions, the Court appeals to an “emerging democratic consensus.” But, by preempting the role of the legislature, it prevents that putative consensus from being put to the test of democratic debate and vote. Surveying the ways proposed for countering the imperial judiciary, Graglia thinks it comes down to political will: “The system of checks and balances set up by the Constitution has broken down where the Supreme Court is concerned; that institution now checks but is not checked by the other branches. President Lincoln dealt with the abuse of judicial power by announcing that although he would not defy the Court’s Dred Scott decision, neither would he accept it as settling the slavery issue. Congress and the President could similarly make clear that contemporary Supreme Court rulings of unconstitutionality without basis in the Constitution deserve not respect but censure. If the political will were there, means could be found to return the country to the experiment in popular self-government in a federalist system with which we began.”Yep. I just wish I thought it would be that easy, even if we could find the requisite political will.
