Judicial tyranny

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Judicial tyranny is a political epithet often used to describe the actions of unelected judges whose rulings invalidate the policy decisions made by elected officials, overrule enacted laws or violate an existing interpretation of the U.S. Constitution. Some political rhetoric imprecisely uses the phrase synonymously with judicial activism, but the terms have had different meaning, although in debates today their meanings have merged, 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 lead 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.

Liberal politcos do not agree that judicial tyranny, as used by conservatives, exists today. Those of a more liberal bend 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.

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[edit] Related rulings

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was the first ruling establishing the powers of judicial review.

Dred Scott v. Sandford

[edit] See also

[edit] Sources

[edit] Books

  • David Barton, 2003. 'Restraining Judicial Activism (Wallbuilder Press).
  • Alexander M. Bickel, 1986. The Least Dangerous Branch 2nd ed. (New Haven, CT: Yale University Press).
  • Robert Bork, 2003. Slouching Toward Gomorrah: Modern Liberalism and American Decline (Regan Books).
  • Bradley C. Canon and Charles A. Johnson, 1998. Judicial Policies: Implementation and Impact 2nd ed. (Congressional Quarterly Books).
  • Paul O. Carrese, 2003. The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago: University of Chicago Press).
  • Ronald Dworkin, 1977. Taking Rights Seriously (Cambridge, MA: Harvard University Press).
  • Ronald Dworkin, 1988. Law's Empire (Cambridge, MA: Harvard University Press).
  • Lino A. Graglia, 1976. Disaster by Decree (Ithaca, NY: Cornell University Press).
  • H.L.A. Hart, 1961. The Concept of Law (Oxford: Oxford University Press).
  • Sterling Harwood, 1996. Judicial Activism: A Restrained Defense (London: Austin & Winfield Publishers), 167pp. ISBN 1-880921-68-5
  • Kenneth M. Holland, editor, 1991. Judicial Activism in Comparative Perspective (Palgrave Macmillan).
  • Duncan Kennedy, 1998. A Critique of Adjudication (Cambridge, MA: Harvard University Press).
  • Michael Rebell and Arthur R. Block, 1982. Educational Policy Making and the Courts: An Empirical Study of Judicial Activism (Chicago: University of Chicago Press).
  • Phyllis Schlafly, 2004. The Supremacists: The Tyranny Of Judges And How To Stop It ISBN 1-890626-55-4
  • Judicial Tyranny: The New Kings of America? by Mark Sutherland 2005. ISBN 0-9753455-6-7 Features conservative perspectives on the United States judicial system from Mark Sutherland, US Attorney General Ed Meese, Ambassador Alan Keyes, Dave Meyer, Phyllis Schlafly, the Honorable Howard Phillips, Alan Sears, William Federer, Ben DuPre, Rev. Rick Scarborough, David Gibbs, Mathew Staver, Don Feder, Roy Moore, James Dobson and Herb Titus.
  • Mark R. Levin, 2005. Men In Black: How the Supreme Court Is Destroying America ISBN 0-89526-050-6
  • Arthur Selwyn Miller, 1982. Toward Increased Judicial Activism (Greenwood Press).
  • David Gwynn Morgan, 2001. A Judgment Too Far? Judicial Activism and the Constitution (Cork University Press).
  • William P. Murchison, 1982. Judicial Politics Gone Wild: A Case Study of Judicial Activism in Texas (Washington Legal Foundation), 11pp.
  • Stephen P. Powers and Stanley Rothman, 2002. The Least Dangerous Branch? Consequences of Judicial Activism (Praeger Paperbacks).
  • Herman Schwartz, editor, 2002. The Rehnquist Court: Judicial Activism on the Right ISBN 0-8090-8073-7.
  • Christopher Wolfe, 1997. Judicial Activism, 2nd ed. (Totowa, NJ: Rowman & Littlefield Publishers, Inc.).

[edit] External links

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