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Judicial Supremacy
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Judicial Supremacy is not just a theory. It describes the absoluteness of power that makes government so absolutely corrupt that you can not expect justice from it. For good or for bad, we live in a market economy where everything is for sale, save only those things the government prevents from entering the market place. Of all things that a free people do not want to enter that free market place is the administration of justice so that "justice" becomes a commodity available for purchase by the rich or powerful, but not generally available otherwise.
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IN EXAMINING THE BEGINNINGS of judicial supremacy, Kramer explores the battles between the Jeffersonians and Federalists in the 1790s. During the political conflicts of that decade, the Federalists became fearful of the people's efforts to influence the government -- especially calls for support of revolutionary France in its fight with Great Britain. Federalists believed that after the people had spoken at the ballot box, the people were to obey and support the government. When the people held meetings to condemn the pro-British policies of the Adams administration, the Federalists viewed this as an usurpation of power.
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Judicial Supremacy over the Grand Jury: Judges control the selection of grand jurors. In the Capitol of California, the judges are very careful to make sure that the Grand Jury does not "run away" as it did in the mid 1980s when it investigated a "Monica" type affair on the bench. That so embarrassed the judges that they hand picked a "retiring judge"(15) to be the next grand jury foreman so it couldn't run away again. That "tradition" continues. This year 2001, the foreperson is a former Sacramento mayor. Is she appointed to uncover all of the government corruption she knows of, or to prevent it from embarrassing the powers that be?
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Judicial supremacy is the essential undercurrent of the Schiavo case (and the judicial confirmation battles now ongoing). In an interview several months ago, Michael Reagan observed that a President who believes in God recognizes there is a power in the universe greater than himself (and implicitly, greater than government). Consider the converse:
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Other commentators have similarly noted the profoundly anti-democratic attitudes that underlie modern support for judicial supremacy: attitudes grounded less in empirical fact or logical argument than in intuition and supposition. Mark Tushnet points to a "deep-rooted fear of voting" among modern intellectuals and suggests they "are more enthusiastic about judicial review than recent experience justifies, because they are afraid of what the people will do." Jack Balkin describes a dominant "progressivist sensibility" constituted by "elitism, paternalism, authoritarianism, naivete, excessive and misplaced respect for the ‘best and brightest,' isolation from the concerns of ordinary people, an inflated sense of superiority over ordinary people, disdain for popular values, fear of popular rule, confusion of factual and moral expertise, and meritocratic hurbris." Roberto Unger identifies "discomfort with democracy" as one of the "dirty little secrets of contemporary jurisprudence."
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In recent years there have been few critics of judicial supremacy. When someone of influence has questioned the doctrine, they have been excoriated in the media and academic press. For example, when then-Attorney General Edwin Meese questioned the doctrine 1986, the academy all but called for his political exile. Faced with criticism from both the left and right, Meese furiously backpedaled to moderate his position.
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Judicial Supremacy