Rule of Law Has Begun to Chafe

This will be remembered as the Judges’ Election. Since Nov. 7, the normal news of politics and elections has been overshadowed by abnormal news of lawyering and judging. The latest legal twists and turns--the Florida Supreme Court started up the recount process on Friday, the U.S. Supreme Court stopped it, at least temporarily, on Saturday--will leave the law looming ever larger in American life.

And while the principle that elected officials trump judges may seem to be intact as of Saturday night, the dream of ever-expanding judicial review has not died. Indeed, the idea that Harvard Law School’s Alan Dershowitz should get a piece of every election--either as a litigant, a pundit or both--is just getting going. And so come what may this year, the 2000 election is the start of a new trend, as old-fashioned electioneering shares the stage with the new style of judicialized politics.

The Florida Supreme Court, of course, has long been known for its liberal activism in areas such as crime and civil rights. Now this activism has turf-jumped into the new domain of election review, as judges scrutinize every action of elected officials. The effect of the Florida Supreme Court’s ruling was to cut George W. Bush’s margin by 154 votes, and that slim surplus, of course, could have disappeared amid 67 Florida counties counting “undervotes” 67 different ways. As Charles T. Wells, chief justice of the Florida Supreme Court, wrote in his strongly worded dissenting opinion, “I have a deep abiding concern that the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis.”

The crisis may have been averted on Saturday; indeed, when even Al Gore’s top lawyer, David Boies, allowed that he was “very disappointed” by the U.S. Supreme Court’s holding action--it will hear the case in Washington on Monday--it must be a serious defeat for the vice president’s chances. Yet if Gore really has absorbed the lesson of Bill Clinton--never give up, no matter what--then it would be premature to count him out completely.

Gore and the Florida Supreme Court have friends in high places. On Saturday, the New York Times editorial page, which strongly endorsed Gore in the November popular election, strongly endorsed the Florida high court in the December judicial postelection contest: “In acting boldly, the court also acted wisely.” And Times columnist Anthony Lewis, who has made a career cheerleading judicial activism, was evidently wrong on Saturday when he wrote, “The U.S. Supreme Court has no power to review a state court’s interpretation of state law.” The liberal dream of the law as a perpetual tool in the hands of activist judges will endure even Saturday’s U.S. Supreme Court setback. Lewis, of course, will have plenty of time to explain to readers why certain kinds of federal judicial review (the kinds that help Democrats) are good and other kinds (those that help Republicans) are bad, but he will no doubt be joined in his tortured reasoning by the usual platoon of Ivy League law professors.

The founding fathers, of course, had a completely different idea in mind when they wrote the Constitution. They intended, under Article 2, for democratically elected politicians, not judges, to control the democratic process of picking politicians. Yet, over the years, judges--egged on by activist litigators--have expanded their jurisdiction into every area of American life. So there’s no reason why they shouldn’t keep pushing for the right--under the living Constitution--to keep pushing in the election arena too.

The judicial activists may yet prevail. For half a century, “progressives” have preferred rule by judges. Indeed, throughout history, many have preferred “philosopher kings”--who, of course, always claim to be acting rightly and justly on behalf of one and all--to vote-grubbing politicians.

Bush knew all along that partisan Democrats would seek to undermine him--that’s politics. But now he is on notice that partisan lawyers, on the judicial bench and at the legal bar, can do even more damage, not just to him but to the bedrock principles of separation of powers and of judicial restraint.

If, in fact, Bush becomes president, he must understand that the rules have changed. And so, not only for his own sake, but for the sake of the rule of law--as distinct from the rule of lawyers--he must make the argument that the legal-law school complex poses the most profound threat to the ordinary workings of American democracy.