Judicial tyranny
Encyclopedia
The term judicial tyranny is a political epithet often used to describe the actions of unelected judges whose rulings unlawfully validate or invalidate the policy decisions made by elected officials, unlawfully sustain or overrule enacted statutes or court precedents, or violate a constitution. Some political rhetoric imprecisely uses the phrase synonymously with judicial activism
, but the terms have had different meaning. The substantive definition of judicial tyranny was penned by Associate Justice George Sutherland
of the United States Supreme Court eighty years ago: “[enacting] a law under the pretense of construing one." Chief Justice Alex Kozinski
of the Ninth Circuit Court of Appeals elaborates:
In the Federalist Papers
, James Madison
observed that "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." When a judge knowingly imposes his or her will on a litigant under the guise of interpreting the law, openly flouting precedent and/or established facts, it is an act of judicial tyranny. And according to the judges themselves -- including Associate Justice Elena Kagan
of the United States Supreme Court,, Judge Richard Posner
of the Seventh Circuit,, retired Judges Robert Bork
and Maura Corrigan of the Michigan Supreme Court
,, these acts are remarkably commonplace.
has wryly observed, "the layman's constitutional view is that what he likes is constitutional and that which he doesn't like is un-constitutional." This fundamental misunderstanding of the concept - eagerly fostered by lawyers with partisan agendas - tends to blur the line between judicial activism
, judicial tyranny, and legitimate exercises of judicial discretion
. This line is further blurred by a pronounced tendency among judges to take indecent liberties with both the law and the facts in their written opinions, in their efforts to "sell" questionable decisions to both the litigants and the general public, and mollify dissenters. In the words of Senior Judge Laurence Silberman of the District of Columbia Court of Appeals
, "The justices (of the U.S. Supreme Court), however, misrepresent their reasoning so egregiously that "I tell my law-school classes that it takes a year to teach law students how to understand the holding of a case." But for the most part, activist decisions tend to be corrected through the normal appellate and legislative process.
The most common form of judicial tyranny is the one most rarely redressed: a judge's willful refusal to do his job, which has been described as "judicial inactivism." As a general rule, inactivist decisions tend to reduce judicial workloads and increase judicial power and discretion, and are rarely corrected at the appellate level. They tend to occur most often in civil rights
cases and disputes involving pro se litigants; as a practical matter, they eviscerate the Bill of Rights
, by foreclosing all legal remedies for invasions of personal rights supposedly made certain through published precedent.
referred to as the "American disease -- the seizure by judges of authority properly belonging to the people and their elected representatives" -- has largely been limited to United States
jurisprudence
, the advent of human rights treaties governing the relationship between governments and their citizens has internationalized the phenomenon. Israel's judiciary, particularly under the leadership of Aharon Barak
, is widely regarded as the most activist in the world.
From a political perspective, judicial tyranny is measured mostly by outcomes, and how well any given decision comports with the individual's view as to how the law is to be construed. This rule also applies to judges: By way of example, whereas Associate Justice Antonin Scalia
of the United States Supreme Court may be the foremost advocate of originalism
in the world, and is quick to chide colleagues for "designing a Constitution for a country I do not recognize,” Randy Barnett
counters that he isn't even an originalist. By way of example, while Scalia complains tirelessly about Roe v. Wade
,, repeatedly arguing in dissent that rules of law adopted by the majority in other cases compel the reconsideration of Roe. consistent application of Scalian jurisprudential principles compel support for the Court's finding in Roe.
held that the Ninth Amendment
(applied to the States by virtue of the Fourteenth Amendment) protected the "fundamental right of the woman to choose whether to bear children." This view comported with the one expressed by James Madison
when he introduced his draft of what eventually became the Bill of Rights to Congress, which becomes problematic to Scalia, who asks what those words meant "to the people who ratified the Bill of Rights or who ratified the Constitution." Compounding matters is the fact, duly pointed out by the Roe majority, that personhood was not attained until birth under the common law, and its opponents conceded that "no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.". Moreover, Justice Scalia is a vociferous opponent of the notion of a living Constitution
: "the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted." Thus, while a cogent argument could certainly be made for a grant of fetal personhood, Justice Scalia is uniquely ill-suited to make one, as it is difficult to credibly complain about "evolving standards of decency that mark the progress of a maturing society" while inventing an evolving standard of fetal personhood. Likewise, it is hard to seriously assert that a document which would not grant personhood to a 40-year-old black slave secretly intended to grant it to a black fetus of 40-days' gestation.
On the one hand, based on his tireless public advocacy, few seriously doubt that, if given the chance, Scalia would vote to overturn Roe. But on the other, were he to remain faithful to his stated judicial philosophy, he would have no intellectually consistent argument with which to support his vote. Fellow Justice Stephen Breyer, his most visible adversary in the debate over originalism, crystallizes Scalia's dilemma:
In debates today, judicial tyranny and judicial activism are often conflated, especially in conservative circles. The phrase is generally traced back to a comment in a letter by Thomas Jefferson
, referring to the "despotism" of Federalist
federal judges (in particular, John Marshall
) who continued to hold office as their political party was fading away.
Judicial tyranny, as used today in conservative circles, represents a form of judicial interpretation
which results in case law
which does not follow precedent
or which exceeds
the scope of established law, and can be contrasted with judicial restraint
. The extent to which the decisions of judges are sometimes characterised as "tyrannical" has led to ongoing controversy over the appropriate role and function of the judiciary
, notably in the United States
, Australia
and Canada
.
Conservative opponents of judicial tyranny contend that the judiciary must not create new law when resolving disputes
or interpreting the law. They argue that the law-making role is strictly the preserve of the legislature
, and that when judges venture into this role, they make rulings on the basis of personal convictions or some other inappropriate ground.
Many liberal activists do not agree that judicial tyranny, as the term is used by conservatives, exists today, but may regard other practices of judges as judicial tyranny. Those of a more liberal bent argue that the role of the judiciary under the doctrine of the separation of powers
will sometimes necessarily result in decisions which go beyond established law, and that this serves as a useful and desirable safeguard against majoritarianism
. They also question the opprobrium associated with the term, seeing it as an example of loaded language
which contains the unstated and uncritical assumption that the judiciary must never create new law when interpreting it.
Libertarian critics who use the term generally focus on decisions that sustain what they consider usurped powers of government, and applaud decisions that sustain rights of individuals against the actions of officials. Their usage is similar to that of constitutionalist or originalist critics who find judges deviating from compliance with a state or federal constitution as originally understood, based on historical evidence.
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
, but the terms have had different meaning. The substantive definition of judicial tyranny was penned by Associate Justice George Sutherland
George Sutherland
Alexander George Sutherland was an English-born U.S. jurist and political figure. One of four appointments to the Supreme Court by President Warren G. Harding, he served as an Associate Justice of the U.S...
of the United States Supreme Court eighty years ago: “[enacting] a law under the pretense of construing one." Chief Justice Alex Kozinski
Alex Kozinski
Alex Kozinski is Chief Judge of the United States Court of Appeals for the Ninth Circuit, an essayist, and a judicial commentator.-Biography:...
of the Ninth Circuit Court of Appeals elaborates:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. … When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text. But ... when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there. ...
Expanding some [provisions] to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.
In the Federalist Papers
Federalist Papers
The Federalist Papers are a series of 85 articles or essays promoting the ratification of the United States Constitution. Seventy-seven of the essays were published serially in The Independent Journal and The New York Packet between October 1787 and August 1788...
, James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
observed that "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." When a judge knowingly imposes his or her will on a litigant under the guise of interpreting the law, openly flouting precedent and/or established facts, it is an act of judicial tyranny. And according to the judges themselves -- including Associate Justice Elena Kagan
Elena Kagan
Elena Kagan is an Associate Justice of the Supreme Court of the United States, serving since August 7, 2010. Kagan is the Court's 112th justice and fourth female justice....
of the United States Supreme Court,, Judge Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
of the Seventh Circuit,, retired Judges Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
and Maura Corrigan of the Michigan Supreme Court
Michigan Supreme Court
The Michigan Supreme Court is the highest court in the U.S. state of Michigan. It is known as Michigan's "court of last resort" and consists of seven justices who are elected to eight-year terms. Candidates are nominated by political parties and are elected on a nonpartisan ballot...
,, these acts are remarkably commonplace.
Distinguishing between judicial tyranny and legitimate judicial interpretation
As the late Justice Hugo BlackHugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
has wryly observed, "the layman's constitutional view is that what he likes is constitutional and that which he doesn't like is un-constitutional." This fundamental misunderstanding of the concept - eagerly fostered by lawyers with partisan agendas - tends to blur the line between judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
, judicial tyranny, and legitimate exercises of judicial discretion
Judicial discretion
Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence...
. This line is further blurred by a pronounced tendency among judges to take indecent liberties with both the law and the facts in their written opinions, in their efforts to "sell" questionable decisions to both the litigants and the general public, and mollify dissenters. In the words of Senior Judge Laurence Silberman of the District of Columbia Court of Appeals
District of Columbia Court of Appeals
The District of Columbia Court of Appeals is the highest court of the District of Columbia. Established by the United States Congress in 1970, it is equivalent to a state supreme court, except that its power derives from Article I of the U.S. Constitution rather than from the inherent sovereignty...
, "The justices (of the U.S. Supreme Court), however, misrepresent their reasoning so egregiously that "I tell my law-school classes that it takes a year to teach law students how to understand the holding of a case." But for the most part, activist decisions tend to be corrected through the normal appellate and legislative process.
The most common form of judicial tyranny is the one most rarely redressed: a judge's willful refusal to do his job, which has been described as "judicial inactivism." As a general rule, inactivist decisions tend to reduce judicial workloads and increase judicial power and discretion, and are rarely corrected at the appellate level. They tend to occur most often in civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
cases and disputes involving pro se litigants; as a practical matter, they eviscerate the Bill of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
, by foreclosing all legal remedies for invasions of personal rights supposedly made certain through published precedent.
Political use of the term
While for the most part, what retired Judge Robert BorkRobert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
referred to as the "American disease -- the seizure by judges of authority properly belonging to the people and their elected representatives" -- has largely been limited to United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, the advent of human rights treaties governing the relationship between governments and their citizens has internationalized the phenomenon. Israel's judiciary, particularly under the leadership of Aharon Barak
Aharon Barak
Aharon Barak is a Professor of Law at the Interdisciplinary Center in Herzliya and a lecturer in law at the Hebrew University of Jerusalem, the Yale Law School, and the University of Toronto Faculty of Law....
, is widely regarded as the most activist in the world.
From a political perspective, judicial tyranny is measured mostly by outcomes, and how well any given decision comports with the individual's view as to how the law is to be construed. This rule also applies to judges: By way of example, whereas Associate Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
of the United States Supreme Court may be the foremost advocate of originalism
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
in the world, and is quick to chide colleagues for "designing a Constitution for a country I do not recognize,” Randy Barnett
Randy Barnett
Randy E. Barnett is a lawyer, a law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist in the United States...
counters that he isn't even an originalist. By way of example, while Scalia complains tirelessly about Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
,, repeatedly arguing in dissent that rules of law adopted by the majority in other cases compel the reconsideration of Roe. consistent application of Scalian jurisprudential principles compel support for the Court's finding in Roe.
An illustration: Scalian jurisprudence and Roe v. Wade
In a unanimous per curiam opinion, a three-judge panel of the United States District Court for the Northern District of TexasUnited States District Court for the Northern District of Texas
The United States District Court for the Northern District of Texas is a United States district court. Its first judge, Andrew Phelps McCormick, was appointed to the court on April 10, 1879. The court convenes in Dallas, Texas with divisions in Fort Worth, Amarillo, Abilene, Lubbock, San Angelo...
held that the Ninth Amendment
Ninth Amendment
Ninth Amendment may refer to the:*Ninth Amendment to the United States Constitution, part of the Bill of Rights*Ninth Amendment of the Constitution of Ireland, extended the right to vote to certain non-citizens...
(applied to the States by virtue of the Fourteenth Amendment) protected the "fundamental right of the woman to choose whether to bear children." This view comported with the one expressed by James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
when he introduced his draft of what eventually became the Bill of Rights to Congress, which becomes problematic to Scalia, who asks what those words meant "to the people who ratified the Bill of Rights or who ratified the Constitution." Compounding matters is the fact, duly pointed out by the Roe majority, that personhood was not attained until birth under the common law, and its opponents conceded that "no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.". Moreover, Justice Scalia is a vociferous opponent of the notion of a living Constitution
Living Constitution
The Living Constitution is a concept in America, also referred to as loose constructionism, constitutional interpretation which claims that the Constitution has a dynamic meaning or that it has the properties of a human in the sense that it changes...
: "the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted." Thus, while a cogent argument could certainly be made for a grant of fetal personhood, Justice Scalia is uniquely ill-suited to make one, as it is difficult to credibly complain about "evolving standards of decency that mark the progress of a maturing society" while inventing an evolving standard of fetal personhood. Likewise, it is hard to seriously assert that a document which would not grant personhood to a 40-year-old black slave secretly intended to grant it to a black fetus of 40-days' gestation.
On the one hand, based on his tireless public advocacy, few seriously doubt that, if given the chance, Scalia would vote to overturn Roe. But on the other, were he to remain faithful to his stated judicial philosophy, he would have no intellectually consistent argument with which to support his vote. Fellow Justice Stephen Breyer, his most visible adversary in the debate over originalism, crystallizes Scalia's dilemma:
Judges do not simply announce a legal conclusion. They reason their way to that conclusion in an opinion written for all to see. The obligation to provide legally defensible reasoning in a publicly accessible format prevents a judge from escaping accountability. Indeed, a good judicial opinion is transparent and informative. It shows that the decision is principled and reasoned. The strength of this reasoning matters.
In debates today, judicial tyranny and judicial activism are often conflated, especially in conservative circles. The phrase is generally traced back to a comment in a letter by Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
, referring to the "despotism" of Federalist
Federalist
The term federalist describes several political beliefs around the world. Also, it may refer to the concept of federalism or the type of government called a federation...
federal judges (in particular, John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
) who continued to hold office as their political party was fading away.
Judicial tyranny, as used today in conservative circles, represents a form of judicial interpretation
Judicial interpretation
Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation...
which results in case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
which does not follow precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
or which exceeds
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
the scope of established law, and can be contrasted with judicial restraint
Judicial restraint
Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional...
. The extent to which the decisions of judges are sometimes characterised as "tyrannical" has led to ongoing controversy over the appropriate role and function of the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
, notably in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
and Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
.
Conservative opponents of judicial tyranny contend that the judiciary must not create new law when resolving disputes
Dispute resolution
Dispute resolution is the process of resolving disputes between parties.-Methods:Methods of dispute resolution include:* lawsuits * arbitration* collaborative law* mediation* conciliation* many types of negotiation* facilitation...
or interpreting the law. They argue that the law-making role is strictly the preserve of the legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
, and that when judges venture into this role, they make rulings on the basis of personal convictions or some other inappropriate ground.
Many liberal activists do not agree that judicial tyranny, as the term is used by conservatives, exists today, but may regard other practices of judges as judicial tyranny. Those of a more liberal bent argue that the role of the judiciary under the doctrine of the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
will sometimes necessarily result in decisions which go beyond established law, and that this serves as a useful and desirable safeguard against majoritarianism
Majoritarianism
Majoritarianism is a traditional political philosophy or agenda which asserts that a majority of the population is entitled to a certain degree of primacy in society, and has the right to make decisions that affect the society...
. They also question the opprobrium associated with the term, seeing it as an example of loaded language
Loaded language
In rhetoric, loaded language is wording that attempts to influence the certain audience by using to emotion....
which contains the unstated and uncritical assumption that the judiciary must never create new law when interpreting it.
Libertarian critics who use the term generally focus on decisions that sustain what they consider usurped powers of government, and applaud decisions that sustain rights of individuals against the actions of officials. Their usage is similar to that of constitutionalist or originalist critics who find judges deviating from compliance with a state or federal constitution as originally understood, based on historical evidence.