Imperial Judiciary

The great liberal innovation is using the courts to force the pace of "social change."

Traditionally, judges were small "c" conservative. You had to drag them kicking and screaming into the modern world. In this way, of course, they provided a kind of social "ballast," curbing the enthusiasms of power politicians and wild-eyed activists.

But liberals have changed all that. Ever since Brown v. Board of Education they have used the courts to do what they couldn't get done in the legislatures.

The purpose of the Brown decision was to force the pace on the civil rights of Negroes, as they were then called. In rejecting the "principle" of "separate but equal" in education the US Supreme Court set in motion decades of school busing to achieve racial balance in the classroom. The price of this win was the ritual humiliation of the South and the unintended consequence of enraging white ethnic enclaves like South Boston.

Let's stipulate that Brown was the right decision, particularly as it dealt with America's original sin, African slavery.

But Brown was followed by the Miranda decision on the right of an accused suspect to remain silent. OK, maybe, although the job of the police is to whack young lower-class males upside the head.

Then Goldberg v. Kelly conferred property rights on entitlement benefits like welfare. Was that really a good idea? At some point shouldn't we tell benefit recipients to go get a job.

There were the decisions giving public school students due-process rights, Tinker v. Des Moines School District and Goss v. Lopez. Really? End summary discipline in the schools?

Then there was Roe v. Wade on abortion, and various decisions limiting religious expression in government schools. That is what created the Reagan Revolution, sending millions of Roosevelt Democrats into the Republican camp.

In these cases, the US Supreme Court was not mopping up a confusion in the law, or correcting a flagrant injustice that had festered for decades. It was forcing the pace, implementing the moral/cultural agenda of the liberal ruling class by judicial ukase.

Now we have the gay marriage issue, Perry v. Schwarzenegger, in which a federal judge just overturned a California state constitutional amendment defining marriage as a union between and man and a woman. Again, the courts are clearly forcing the pace.

Maybe all these decisions are for the best. But the problem is that they haven't been decided by persuasion. They have been declared from the bench and imposed on society from above without the consent of the governed.

That's not how America is supposed to work.