Judiciocracy

By Michael P. Tremoglie

The Pennsylvania Supreme Court in February 2018 established new congressional voting districts for the citizens of the Commonwealth. Their ruling abolished the voting districts established by the legislature in 2011.

Why? The justices felt the 2011 districts were political gerrymandering and discriminated against Democrats. Of course the elected Pennsylvania Supreme Court justices are mostly Democrats.

This usurpation of a legislative function should be considered dangerous regardless of your political affiliation. It was a concern of the Founding Fathers.

Ironically, it was Elbridge Gerry, after whom the portmanteau ‘gerrymandering’ was created and who was a Massachusetts delegate to the Constitutional Convention of 1787, who warned about judicial imposition. He voiced his concern about the "sophistry of the judges."

Federalist 78 warned that judges may exercise their will instead of their judgment in their interpretation of laws. Federalist 81 declared that allowing the judiciary to construe the law would enable it to mold its own laws.

This has occurred more and more. Federal judges have attempted to usurp executive branch authority in terrorist detainee cases and most recently in President Trump’s lawful orders to restrict those wishing to enter the United States from nations where terrorists take refuge from the law.

But judges have demonstrated over the years a desire to intercede in elections - just as was predicted in Federalist 78. In 1987, U.S. District Judge Russell Clark actually ordered a tax increase for citizens to fund a desegregation plan for Kansas City Schools. This judge ordered a 150 percent increase in property taxes in Kansas City, a 1.5 percent income tax for Kansas City and decreed that the state of Missouri was to pay the balance.

Since when did the Constitution authorize a judge to order a tax increase? Sounds a little bit like King John and the Sheriff of Nottingham.

In other cities, judges have ordered criminals released from prison for no reason other than jails being, in their opinion, "overcrowded.

Still others have reversed plebiscites. U.S. Judge Thelton Henderson issued an injunction against California Proposition 209- lawfully enacted by Californians in 1996. Henderson thought his beliefs to be superior to that of the electorate.

A panel of the Ninth Circuit Court of Appeals rejected Henderson’s ruling. Writing for the majority opinion, Judge O’Scannlain wrote, "A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy."

Would that all judges believed that were true. But they do not. Indeed, it seems that we are moving to a judiciocracy in this country rule by judges.

Judicial activism has caused trepidation among conservatives for a while. Now the usurpation of government by the judiciary is becoming a concern on the left. Ironically liberals complained about the Supreme Court determining the last presidential election, when it was the liberals themselves who instigated the court case. Yet liberals still routinely use the courts to enact laws as California’s new flag-ban demonstrates.

Judges on both sides of the aisle need to remember that America is not a judiciacracy. Our country is a nation of the people, by the people and not just the people with the highest LSAT scores - as one judge once wisely wrote.