- The Washington Times - Thursday, August 17, 2000

Supreme Court worship is declining as commentators catch on that the court has become a direct threat to the rule of law. The National Review's Ramesh Ponnuru says that the Supreme Court represents rule by the subjective preferences of "nine people and, often enough, of one woman." Former U.S. Appeals Court Judge Robert H. Bork says our robed masters "bear less resemblance to judges than they do to commissars." The New Republic's Jeffrey Rosen says the court is overcome with hubris produced by its belief in its own supremacy and its contempt for the people and their elected representatives. In his dissent from the court's recent decision overturning laws against partial-birth abortion, Justice Antonin Scalia said that the ruling rests on the personal value judgments of five people and was made independently of any legal argument or constitutional principle.

Supreme Court justices and, increasingly, judges generally no longer accept that the right of Americans to govern themselves is protected by the Constitution. For many years, the court's rhetoric has made it clear that the supreme commissars associate self-rule with prejudice, irrationality and the animus of intolerant majorities. The commissars no longer pretend to interpret the Constitution. Instead, the supreme commissars legislate from the bench.

This usurpation of the constitutional power and authority of Congress directly violates the separation of powers and is grounds for impeachment. But Congress has found that rule by judges is a convenient way to avoid responsibility for divisive issues and has acquiesced in the court's aggrandizement. Congress pats itself on the back each time it sidesteps a politically dangerous issue.

In truth, however, Congress has permitted the rise of judicial coercion. Both the Republican and Democratic parties acknowledge the fact of judicial rule. As Mr. Ponnuru notes, both parties motivate their activists by emphasizing that winning the presidency is important in order to gain "the power to select the people who actually rule the country federal judges."

For many years now, both political parties have tacitly accepted a new political system in which law no longer originates only in elected representatives who are accountable to the people. This change in our constitutional order is probably as permanent as the "temporary" racial quotas that were illegally implemented 30 years ago in order to more rapidly integrate blacks into society.

Both of these policies originated from the same Supreme Court decision, Brown vs. Board of Education in 1954. The rise of the robed masters and the demise of equality in law date from this decision. The problem lies not in desegregation, but in the manner in which it was achieved. It was not done constitutionally and democratically through appeals to good will, persuasion and legislative action. Instead, impatience drove a liberal elite to usurp the legislative power and the democratic process in the name of a just result. They believed the end justified the unconstitutional means.

Many of the justices recognized what was happening and had to be carried along kicking and screaming. Justice Hugo Black saw the Brown decision as "law by injunction." Justice Robert H. Jackson saw the ruling as a blatantly political act. He predicted that the "ruthless use of federal judicial power" would follow if segregation were abolished by judicial decree based on nonlegal opinion that "starts and ends with sociology." Justice Stanley Reed said the Brown decision marked the beginning of kritarchy rule by judges.

The Brown ruling was hatched from a book, "An American Dilemma," the work of Justice Felix Frankfurter's Swedish socialist friend, Gunnar Myrdal. Mr. Myrdal argued that democracy was the source of segregation. He contended that the American people, Northerners as well as Southerners, were imbued with racist impulses that would forever perpetuate segregation. He argued that the "Negro problem" would persist without the intervention of an extrademocratic power. He advocated a conspiracy by an educated elite to use the coercive power of the judiciary to end segregation. Mr. Myrdal succeeded.

But the Brown decision attacked more than segregation. It attacked the presumption of good will and freedom of conscience that are the foundations of our civil society. Brown was explicitly based on the assumption that representative democracy cannot produce moral outcomes. Consequently, Brown's aftermath is not only busing and racial preferences, but also judicial usurpation of legislative power. We are still laboring under this heavy indictment of democracy.

The Brown decision marks a fundamental shift in attitudes about the legitimacy of democracy and the will of the people. The Brown decision introduced into our political system the use of judicial coercion in behalf of just causes. One day in the future a historian will write: "The American Constitution lasted less than two centuries. It was toppled in 1954 when kritarchy first raised its ugly head."

Paul Craig Roberts is a columnist for The Washington Times and is nationally syndicated.

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