by Clark Neily:
I’d like to address the largely misplaced concerns some people have about so-called “judicial tyranny.” As I understand it, the idea of judicial tyranny is that the judiciary is simply another branch of government and, as such, presents as much of a threat to our liberty as any of the other branches. As I will explain in this post, that view is profoundly mistaken and deeply inimical to liberty.
Ask yourself this question at the outset: How many court orders are you personally subject to right now? For the vast majority of Americans, the answer is none. Nada. Zip. Zero.
Now ask yourself another question: How many laws and regulations are you personally subject to right now? In a sense it’s a trick question because you really have no idea. No one does. In fact, the U.S. Department of Justice tried to count the total number of federal criminal laws—to which all Americans are subject, no matter where they live—and couldn’t do it. The best they could do was a ballpark of 4,500 or so. That doesn’t include regulations promulgated by federal administrative agencies, which are believed to number in the hundreds of thousands, nor does it include state laws or local ordinances. How many of those might there be? Again, no one knows for sure, but together the states passed 1,006,649 laws between 1954 and 2002—that’s about 20,000 laws per state. The vast majority of those are still on the books, and plenty more have been added since then.
Conservatively speaking, you are subject to around 25,000 federal and state laws, along with an untold number of federal regulations and local ordinances. And how many court orders again? Most likely zero.
So those are the numbers. Let’s look at the dynamics behind them.
Unlike legislators, judges cannot simply reach out and impose their will on anyone who happens to live in their locale. In order for a court order to be binding on any given individual, that person must not only be within the jurisdiction of the court, but, with rare exceptions, must also be a party to a case pending before the court. The vast majority of Americans are not parties to pending litigation and are therefore not subject to the will of any judge.
But that is emphatically not true of legislators and the bureaucrats who staff administrative agencies and whose job entails translating often quite general grants of statutory authority into specific regulations that people must obey. As Benjamin Franklin correctly observed, “No man’s life, liberty or fortune is safe while our legislature is in session.” By contrast, a sitting judge presents no threat to the liberty of anyone not personally before that court.
People nevertheless rail against activist judges and accuse them of being “tyrants in black robes.” Indeed, there is whole literary niche devoted to castigating the courts for enforcing supposedly nonexistent constitutional limits on government power. Recent titles on the left include influential professor Cass Sunstein’s Radicals in Robes and Harvard law professor Mark Tushnet’s Taking the Constitution Away from the Courts. From the right we have Mark Levin’s Men in Black (in which the author claims that “America has turned from the most representative form of government to a de facto judicial tyranny”) and Judge J. Harvie Wilkinson’s Cosmic Constitutional Theory, which argues that courts are taking away our “inalienable right of self-governance.”
Accusations of judicial tyranny are most often prompted by court decisions that forbid the government from enforcing a particular law or policy. From striking down Washington, D.C.’s gun ban to overturning laws against gay sex, people who disagree with those rulings often characterize them as examples of judicial tyranny.
But wait a minute. When judges forbid the government from enforcing criminal laws—as the Supreme Court did with respect to bans on guns and gay sex—they are not forcing anybody to do anything against their will. Instead, the effect of those decisions is to prevent one group of people from imposing their will on others who disagree with them. The only way that could be an act of tyranny is if every person has an inherent right to impose their will on others. But there is no such right, and being prevented from doing so by a court ruling—even a mistaken one—is simply not an act of judicial tyranny. There is no right to impose your will on other people who have neither harmed nor threatened to harm you and whose conduct violates none of your rights. As a result, it is deeply incoherent to characterize as “tyranny” a judicial decision that does no more than prevent the government from enforcing a given policy that required other people to conform their actions to your vision of sound public policy.
This is not to say there is no such thing as judicial tyranny. There have certainly been instances in the past when judges have grossly overreached and illegitimately imposed their will on others without a legitimate legal basis. Examples include the infamous case in Kansas City where a federal judge took over the public school system and forced taxpayers to lavish billions of dollars on the schools in order to fix a problem—past racial segregation—to which endless buckets of money turned out not to be the solution.
Judges who truly care about preventing tyranny should err on the side of liberty and limited government. At the Institute for Justice call that “judicial engagement,” and it is the antidote to decades of judicial abdication that have left us with far more government and less freedom than the Constitution means for us to have.
Clark Neily is a senior attorney at the Institute for Justice and directors of the Institute’s Center for Judicial Engagement. He litigates economic liberty, property rights, school choice, First Amendment, and other constitutional cases in both federal and state courts. In his private capacity, he served as co-counsel for the plaintiffs in District of Columbia v. Heller, the successful Second Amendment challenge to Washington, D.C.’s handgun ban.