THE LATE Justice Stanley Reed, when one of his law clerks would argue for an expansive view of the Constitution in order to achieve desirable results, would refer him to the dictionary to look up the word "kytocracy," which means "government by judges." Reed was a member of a now nearly extinct breed: a New Deal liberal who strongly opposed judicial usurpation of the power of the legislative branches.
By contrast, the liberals of today have largely abandoned Reed's wise counsel and misguidedly campaign on the issue of judicial appointments to rouse their followers, with many insisting that judicial appointments are the preeminent issue at stake in this election. This argument, however, is perilous for the Democrats and dangerous to our democracy: Experience has shown that judicial activism is a bad way of making legislative policy, and that liberal politicking on the judiciary will backfire. There may be good reasons to vote for Kerry over Bush this November, but the judiciary is not one of them.
It is unfortunate that some issues have become so intertwined with the judiciary as to negate any legislative solution. Many of the "rights" cited as being incumbent upon the judiciary to preserve,such as "privacy rights" and abortion rights, are complex issues that frequently lend themselves better to legislative than judicial determination. The issue of "privacy rights," for example, is not a purely "yes or no" proposition; it usually requires complicated balancing of the public interest in effective law enforcement and the need for clear rules to guide policemen in work that frequently calls for split-second decisions, on one hand, and an individual's reasonable expectation of privacy on the other.
While one may argue for a different balancing of these interests than Congress might endorse, this is not an up-or-down issue, and it is clear that the legislative branches, with their greater ability to gather information and discern the needs of law enforcement, must play a primary role in these issues. Judicial balancing of these interests has been marred by controversy, and it has never been clear why these value judgments must be made by the judiciary acting under sparse constitutional language, rather than the legislature.
Judicial legislation further falls short as a political tool because of its divisive nature and tendency to spark legislative backlash. A perfect example is the gay marriage controversy. The decision of the Supreme Judicial Court of Massachusetts in Goodrich v. Dept. of Public Health, in which it ordered the legislature to pass gay marriage legislation, intended itself to be a ringing call for gay equality, with its lofty rhetoric and citations of U.S. Supreme Court cases. It fell flat. As a consequence, Missouri and Louisiana have passed by overwhelming margins constitutional amendments banning gay marriage (though Louisiana's amendment is currently tied up in the state court system on a procedural issue), joining Alaska, Nebraska, Nevada and Hawaii, which passed its gay marriage ban in response to a 1993 decision of its state court.
Voters in 11 more states will vote on, and likely approve, gay marriage bans on Nov. 2: Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oregon and Utah. Votes on these bans will spark large turnouts of Christian conservatives and could very well sway the presidential election results, not to mention other federal and state races, in these states. Passage of gay marriage, or in many instances civil unions, in any of these states will now require a protracted constitutional amendment process. Furthermore, the gay marriage issue, which is almost purely symbolic and devoid of substance, having been foisted on us by activist judges, splits the Democratic Party internally and further splits the nation between elite urban liberals, who tend to support gay marriage, from more culturally conservative working-class voters. Why should we pine for more of these judicial activists?
In light of all of this, the question remains as to why Democratic Party faithful continue to support an activist judiciary. The answer probably lies in the fact that most voters do not distinguish significantly between the judicial and legislative branches, and wish to see their preferred policies enacted regardless of the means. Thus, those who argue for judicial restraint seem as foreign to the Democratic Party today as Wall Street bankers did in the 1930s. This, however, is a mistake. The principle of popular self-government means that all governmental authority, for better or worse, must be accountable to the people. Kytocracy is a form of government alien to our system, and should remain that way.
Noah Peters is a Cavalier Daily viewpoint writer.
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