In the West, it is not the executive that threatens the separation of powers. It is faceless judges lacking democratic legitimacy who legislate on the pretext of judging…. [T]his judicial imperialism… [has] become a judicial tyranny….
These innovations… have gradually established the Israeli Supreme Court as the ultimate arbiter of all questions, not only legal but also political. Any Israeli citizen — and any NGO, even one funded from abroad — has the right to ask the Supreme Court to overturn any democratic decision…. There is no decision of the Israeli government and parliament that cannot be overturned by unelected judges.
[Marine Le Pen and her supporters] argued, accurately, that the judges were essentially preventing the French people from voting for Le Pen.
There is effectively no longer a single “right-wing” measure that can be adopted in any field by Parliament or the government without being struck down by the Constitutional Council or the courts. When the left loses at the ballot box, it is certain to win in the courts. In France, the judge reigns and the people no longer seem to have sovereignty over anything.
The torrents of universal rules and requirements deriving from articles of the European Convention on Human Rights (e.g. privacy, dignity), and the rulings of the European Court of Human Rights are probably the worst modern example of tyrannical judicial imperialism. The anarchy of immigration in Europe is entirely of its making.
The US Supreme Court decided last week that the district court judges had jurisdiction over specific cases and plaintiffs in their districts — not across the nation.
“The judges of the nation are only the mouth that pronounces the words of the law, inanimate beings who can neither moderate its force nor its rigor.”
— Montesquieu, The Spirit of the Laws (1748), Book XI, Chapter VI
From Israel to the United States, via Europe, the judicial coup d’état has become permanent. In the West, it is not the executive that threatens the separation of powers. It is faceless judges lacking democratic legitimacy who legislate on the pretext of judging. Here are four salient examples of this judicial imperialism — which have become a judicial tyranny — and a proposed American solution.
Israel
In the 1980s and 1990s, the Israeli Supreme Court introduced three innovations that revolutionized Israel’s legal and political landscape. First, it abolished the “standing” requirement, allowing anyone to challenge any government decision before the Supreme Court simply because they disagreed with it, even if they were not personally affected by it. This is unique in the Western world. Second, the Court removed the restriction on justiciability, placing all government and administrative actions (including foreign affairs, military actions and the budget) under its control — an extraordinary measure. Third, the Court took on the power to assess the “reasonableness” of government decisions, thus giving itself a political veto over the elected government’s choices.
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Author: Ruth King
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