Judicial oligarchy and power grabs

Lee A. Casey and David B. Rivkin, Jr. talk about Judges who would be king at Slate. It is a good rundown on the history and consequences of lawfare and hubris in the judicial branch of government.

The problem with this view is obvious. If there is no aspect of
government over which the courts do not have the final say, then under
the guise of saying “what the law is,” as the 1803 case Marbury v. Madison
put it, judges become the little kings they so often remind the
president he is not. This is especially the case today because a number
of the traditional constraints on judicial power have been severely

Over the past 60 years, however, both the requirement that a litigant
must have standing and the political question doctrine have lost much
of their force.

The Constitution’s Framers did not design the judiciary as the “first
among equals” in our tripartite system, ultimately responsible for
determining whether Congress or the president have properly exercised
their own discretionary functions.

What will check the judiciary’s contemporary expansion? We can hope
that the other two branches will realize that, however expedient it is
to have the courts decide politically difficult issues, in time
judicial supervision will make it impossible for them to perform their
own constitutional duties—such as protecting the population from future
attacks. Similarly, the courts may discover that ultimate power carries
ultimate responsibility. That should be a daunting prospect for a
branch that lacks the legitimate power of the purse or sword. In the
meantime, anyone who cares about limited government, and the individual
liberty it is designed to protect, should ask themselves who now checks
and balances the judges.

One of the most difficult tasks an individual encounters is that of defining one’s limits. Organizations have this problem as mission creep. In many ways taking note of governmental mission creep is what is behind the Town Hall fracas currently in the media headlines.

When it comes to branches of government, the first enforcement against mission creep is the other branches defending their turf. Lately, it seems, Legislative has been going after Executive and using Judicial as a weapon. In that process, the growing scope of the Judicial mission is creeping out of its original scope out of much notice. There are reasons to be concerned and Casey and Rivkin provide a good synopsis.

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