Our Imperial Judiciary
We need to bring a gavel down on arrogant judges like Florida's supremes
Constitutional crisis in Florida. Oh, the hand wringing at the
prospect of the Florida legislature challenging the state
supreme court's decision in Gore vs. Bush. Constitutional
crisis? Why not? It's about time we had one.
It might finally allow a cathartic resolution of the
debilitating constitutional problem we have been suffering under
for 40 years: arrogant, activist courts trampling the
prerogatives of elected legislatures and elected governments in
deciding how we are to live. Christmas creches snatched from
public displays under the baroque, three-pronged "Lemon test";
Miranda rules plucked out of thin air; the right to abortion
suddenly located in the "penumbra" of the Constitution.
I happen to like Miranda. I happen to support legalized
abortion. But many citizens don't. And they rightly feel
aggrieved that these momentous decisions were made by unelected
grandees in black robes. (The U.S. is the only Western country
to have legalized abortion without the consent of its
Americans have suffered their disenfranchisement largely because
of a traditional, habitual respect for the U.S. Supreme Court.
They have no such instinctive respect for the Florida Supreme
Court, which until yesterday they had never heard of. Its
attempt to throw a presidential election by inventing post facto
election law is surely a bridge too far. It begins with the
justices setting themselves up as defenders of the "will of the
people" against what they contemptuously call "hypertechnical
reliance upon statutory provisions," or what other people call
"adherence to the law."
Hypertechnical? The law's single technicality was that ballots be
counted by 5 p.m., Nov. 14. This was hardly a law riddled with
minutiae. It had a simple, clear standard. The court's real
problem is not technicality but legality, what it disdainfully
terms "sacred, unyielding adherence to statutory scripture."
Courts, it seems, write scripture; legislatures write talking
The justices then denounce Florida secretary of state Katherine
Harris for "imposing an arbitrary seven-day deadline." They then
proceed, without irony, to impose their own arbitrary five-day
deadline. (Hers, unlike theirs, was not arbitrary but statutory.)
They accuse her of attempting to "summarily disenfranchise
innocent electors" by adhering to the deadline. Really? Then
what about the court's own deadline of Nov. 26? It caused
Miami-Dade officials to shut down their recount completely.
According to its own logic, the court has disenfranchised
thousands of Miami-Dade voters. But the whole disenfranchisement
charge is absurd in any case. The plain fact is that any
deadline must necessarily "disenfranchise" voters--or it would
not be a deadline, i.e., a date after which otherwise legal
ballots must be ignored. We must nonetheless have deadlines, or
no election would ever end.
Moreover, the court repeatedly defined its role as tribune of
the unspoken plaintiffs, citizens whose votes have gone
un(re)counted. Why then did it not order a recount of all the
counties of Florida? If refusing to reconsider spoiled ballots
disenfranchises voters of Palm Beach, how could the court
tolerate residents of 64 other counties having their dimpled
ballots languish forever in un-hand-counted obscurity?
This central contradiction alone--elevating recounts in
Democratic counties to high principle while ignoring recounts in
the rest of the state--renders the court's ruling a travesty. A
welcome travesty, however. Because this time the lawless
lawmaking was made in the full glare of publicity and with such
obvious partisanship. (All seven judges are Democratic
appointees; the selection to the court of five of them was
strongly influenced by Dexter Douglass, a Gore lawyer who
addressed the court during the dramatic oral argument.) And
because its very outrageousness--rewriting the rules of a
presidential election after the election--dramatizes the extent
of judicial usurpation as has nothing since Roe v. Wade.
Hence the search for remedies: the Florida legislature
threatening to reassert its prerogative to make law, either by
reaffirming the original language of the election law that the
court grossly misconstrued, or by simply appointing their own
presidential electors; Congress contemplating exercising its own
authority to recognize electors, should the Florida delegation
turn out to have been manufactured by a court.
This would indeed be a constitutional crisis, but one brought on
by the courts themselves, and one we have long needed to
The issue is judicial supremacy. We acquiesce to it for one very
good reason. The reason is not theoretical (it being hard to
understand why the one unelected branch should be supreme over
the other two) but practical. We all need a place where the buck
stops. When Nixon and Congress were at odds over the White House
tapes, the supremacy of the Supreme Court enabled a final
resolution of the issue.
Fine. But for the judiciary to earn--and sustain--that
pre-eminence, it needs to exercise restraint. After all, it has
no power of its own. Unlike the legislature, it can raise no
revenues. Unlike the executive, it commands no police forces.
Its power rests entirely on people's belief in its legitimate
authority. But that belief can--and should--be forfeited when
courts do what the Florida Supreme Court has done: wantonly
usurp their two coequal branches, denying both the plain
language of a law and the plain authority of the official
elected to administer that law.
Such a court deserves to be challenged. Yes, that will create a
crisis. But crisis is preferable to supine acquiescence. Should
the Florida court be put in its place--overridden and thus shorn
of its emperor's new clothes--we will have at last begun to
rectify the constitutional imbalance created by the imperial
judiciary. This is not a constitutional crisis. This is a