NOTE FROM THE PUBLISHER: The Most Dangerous Branch
Regnery, Alfred S.
NOTE FROM THE PUBLISHER The Most Dangerous Branch BY ALFRED So REGNERY d rHY ARE WE SO CONCERNED about the feder"I : al courts? Alexander Hamilton, in Federalist 78, assured us that the...
...NOTE FROM THE PUBLISHER The Most Dangerous Branch BY ALFRED So REGNERY d rHY ARE WE SO CONCERNED about the feder"I : al courts...
...Power accumulated over 200 years is not readily returned...
...We think Justice John Paul Stevens, one of their reliable votes is, at 86, deserving of retirement, and we encourage him in that regard...
...It has been going on ever since, although the courts were reluctant, until the Warren era, to abuse that power...
...We are concerned about the courts because of their willingness to exercise their power...
...The judiciary was essentially a brake on the other branches of government until the middle 1950s, and had rarely told the other branches what to do...
...Being largely right for 150 years is actually a pretty good record-perhaps better than could have been expected, in any case...
...Of course, we know that deciding what is good for the country should not be the prerogative of a bunch of politically selected and unelected lawyers, but a question for the representatives of the people...
...Senate liberals are rightly alarmed about losing control of the federal courts, and will do whatever is in their power to keep what they have...
...Hamilton was at least partially right, at least for about 150 years...
...His warning that Justice Anthony Kennedy is likely to be the swing vote between four liberals and four conservatives is particularly troubling...
...When Kennedywas appointed by Ronald Reagan, Attorney General Ed Meese was 95 percent sure that he would be a solid conservative...
...Their idea of what is good for the country often differs vastly from that of the man on the street...
...It may truly be said to have neither force nor will, but merelyjudgment...
...Alexander Hamilton, in Federalist 78, assured us that the courts, from the nature of their functions, would remain the least dangerous of the three branches of government...
...Erwin Griswold, former dean of the Harvard Law School and former solicitor general of the United States, observed that "Some Supreme court justices employ the ruse of saying, 'What we are doing is interpreting the Constitution,' when what they are doing is deciding what is good for the country...
...Methvin is more optimistic than I am that the power ofthe courts can ever be reclaimed.As much as we love to beat up on Earl Warren, the shift of power to the courts began soon after Alexander Hamilton penned Federalist 78...
...If the courts had, as Hamilton predicted, no force, they certainly had a will...
...The judiciary, said Hamilton, "has no influence over either the sword or the purse, no direction either of the strength of the wealth ofthe society, and can take no active resolution whatsoever...
...Alfred S. Regnery, publisher of The American Spectator, is writing a book on the conservative movement...
...In order to understand our concern, he need only look at the quality of the education of his children, at the employment practices followed by his employer, at the social environment in his community, at the quality ofjustice meted out by his local courts, and at the uses to which his tax dollars are spent, to mention just a few of the things that the federal courts have determined...
...More often, the courts told them what not to do, particularly in matters dealing with the economy and the social order...
...Chief Justice John Marshall, who joined the Court in 1801, began the shift by presiding over a Court that repeatedly transferred power from the states to the federal government and, in the course of those adjudications, enlarged and enhanced the power of the judiciary...
...Instead, it is now Kennedy, rather than Sandra Day O'Connor, who will decide which way the 5-4 decisions go...
...But then, veteran court-watcher and TAS contributor Gene Methvin reminds us, things started to go very wrong: Chief Justice Warren decided that the Constitution was a living document and the Supreme Court was really a legislature...
...Legal historian Steve Presser advises that all may not be solved, not by a long shot...
...4 THE AMERICAN SPECTATOR MAY 2006...
...One more Bush appointee would certainly take some of the pressure off Justice Kennedy...
Vol. 39 • May 2006 • No. 4
