From the WSJ Opinion Archives
CITIZEN OF THE WORLD
Judges or Priests?
How overactive courts undermine the rule of law.
Churches in America are almost devoid of civic importance. Universities are now two-a-penny and mediocre. Except for the cream, they exercise neither real influence over our lives nor any degree of authority. Public schools, once the wellspring of the New World's civilization--where respect was taught for flag and country, for elders and neighbors, for constitution and history--are now, in a distressing number of cases, places that churn out unfinished citizens, hapless in their civic inadequacy.
The only places left in this country that could be described as temples--for that is how we treat them--are the courts.
In saying this, however, I do not say that the courts are necessarily a force for good--or of social and spiritual virtue--in the way our churches, universities and schools once were. I am saying, instead, that they loom large over us, casting their shadow over every corner of the spaces we inhabit.
They are temples because the judges who sit in them now constitute a priesthood, an oracular class that shapes the way we behave, or, more accurately, the way we are allowed to behave. They are a priesthood, too, because we have abdicated to them our personal responsibility and, in many cases, even what used to be the smallest judgment call a citizen had to make for himself.
The courts--more so than the legislatures--now determine the way we live, and that explains the ferocity with which liberals have threatened to challenge President Bush's judicial nominations. They are not doing this from spite; nor is the threat some crude form of political payback, though it's certainly crude. It is part of a battle over moral terrain, over the right and the power to draw civic maps. Liberals seek control of the courts so they might press rules into play where previously there were none, and to disqualify behavior that has been acceptable for generations. As for the rest of us, well, we wish for no more than judges who would stand up for common sense.
Mr. Bush, I would venture, is seeking to restore the primacy of plain law to America, and to undermine the primacy of fancy lawyers. His judicial picks subscribe to a view of statutory and constitutional interpretation that places restraint above creativity. As Judge Robert Bork wrote in The Wall Street Journal yesterday, this restrained mode of judgment--this unexcitability and dispassion in the face of faddishness and propaganda--is characterized as right-wing activism. Activism!
In truth, it is the opposite. It is caution, and it is conservatism, in the best sense of that much-abused word. It is also part of a movement, of which some sage judges--I can think of Justices Antonin Scalia, Sandra Day O'Connor, William Rehnquist and Clarence Thomas--are a part, which seeks to restore to society that lost art of "drawing lines," to use Mr. Howard's apt phrase.
These judges, and others like them--whom Mr. Bush would have on the bench--are sending out a message that is anti-oracular. They do not have the answer to every problem, every squabble, every spill and every fall. They do not have remedies for everything, either. And it disturbs them--these so-called right-wing activists--that they should be seen as part of a force that some would regard as capable of righting every wrong, or of giving stature to every "right" claimed by every constituency.
Mr. Bush is battling for restraint, against the forces of unchecked "juristocracy," to borrow a phrase from another book, "Out of Order," by my Journal colleague Max Boot. That is why the fight is so intense, and why it will get worse. If ever there was a clash of civilizations, it is right here in America. Big government vs. small government pales in comparison with big courts vs. small courts.
Mr. Varadarajan is deputy editorial features editor of The Wall Street Journal. His column will appear Fridays in May.
