In the waning days of the Soviet Union under Gorbachev, giddy foreign journalists asked a Soviet official whether his country was headed for Western-style democracy. He replied that the Soviets didn’t want to exchange the dictatorship of the proletariat for a dictatorship of the lawyers.
At the time, I thought it was an insolent retort from a grumpy Communist who resented the question. Since then, I’ve come to see its wisdom. My country, founded by freedom-loving men and women, sometimes resembles a dictatorship of, by and for the lawyers.
I’m not a lawyer-hater. Thank God we have conscientious lawyers to represent us and advise us. I’m not against voting some of them into office as legislators. They’ve made wretched presidents in my lifetime, but my top choice in the recent presidential primaries was a well-known lawyer.
I believe in the rule of law, just not in the rule of lawyers. My main problem with lawyers comes after they are appointed to be federal judges. I don’t envy them. It’s obviously a difficult job. We need to insulate them from reprisals and improper pressure, but we don’t want to create monarchs. That’s kind of a touchy subject for real Americans.
Start with the idea of lifetime tenure. Who else but a federal judge has lifetime tenure without gerrymandering? Just royalty and nobility, which the Constitution supposedly outlaws in America.
Maybe I’m expecting too much of judges who are, after all, just human. But when we give them such extraordinary and dangerous powers over us, I guess we hope for an incorruptible priesthood of steely integrity and buddha-like indifference to material or political ambition.
Alas, we got off on the wrong foot in 1803 with Marbury v. Madison, a bit of Supreme Court jiu-jitsu that established “it is emphatically the province and duty of the judicial department to say what the law is.” Ever since then, federal judges have reserved the right to overturn legislation that they deem
inconsistent with the Constitution. This might have been a happy turn of events had the judges confined themselves to the letter of the Constitution, or to the original intent of its framers.
But federal judges have treated the Constitution as a sort of wild card. The late Justice William Douglas spoke of its “penumbra and emanations,” creating a jurisprudence that is hard to distinguish from hallucination.
Eventually, Supreme Court decisions would cite a Constitutional right to privacy (found nowhere in the actual text of the Constitution) to justify Roe v. Wade, open season on unborn human babies. Federal judges would overturn state ballot initiative results, because voters were motivated by “animus” against homosexuals. The Supreme Court would order the states to extend the rights and privileges of marriage to Sodomites. And federal judges would dictate immigration policy over the objections of an elected president.
This is not a friendly difference of opinion. It’s a judicial coup d’etat.
But arrogance is not the only source of judicial corruption. Sometimes it’s timid deference to a menacing, dictatorial president.
When Franklin Roosevelt attempted to dilute the Supreme Court with six of his own judges, the Court’s decisions promptly veered left. After President Obama (a lawyer) disrespected the Supreme Court in a State of the Union speech, and after Sen. Patrick Leahy (a lawyer) signaled that Chief Justice John Roberts would be discredited if he opposed Obamacare, Roberts (a lawyer) switched sides and affirmed the Constitutionality of the coercive “individual mandate.”
We’re not going to change human nature. Lawyers will have their frailties, just like us. But we owe our grandchildren a free country, not a dictatorship.