A Stitch in Haste

There is so much bile, vitriol and infantile whining in Robert Bork's latest screed (WSJ - $) that one hardly knows where to begin. (One option might be his Schiavo-esque, brain-dead "persistent homophobic state.") (UPDATE: Bork's piece is now available at OpinionJournal.)

But among all the bombast is one complaint that especially caught my eye:

The Court's critics are not angry without cause; they have been provoked. The Court has converted itself from a legal institution to a political one, and has made so many basic and unsettling changes in American government, life, and culture that a counterattack was inevitable, and long overdue.

This is, of course, utter nonsense.

What Bork conveniently overlooks is that, while the judiciary generally and the Supreme Court in particular may have expanded their reach into American "life and culture," that growth is minuscule compared to the overall growth of every other part of government. If you have an expansive — and expanding — public sector, then you are going to have to have an expansive judiciary to accommodate it. There would be no "Big Bench" if there had been no "Big Government" in the first place.

Pick whatever point in time you find most convenient. The New Deal is a favorite for many, but one could also easily choose the Progressive Movement, post-war Wilsonian globalism, the enactment of the income tax, the establishment of the U.N., the Great Society, the War on Drugs, and lately the War on Terror, it really doesn't matter. For decade after decade, for several generations now, every other branch of government has expanded far beyond the worst nightmares of the most prescient Framers. The power of both the Congress and the Presidency have swelled in width, breadth and depth to gargantuan scales — how could anyone possibly have expected the role of the courts not to increase correspondingly?

(And the branches of government have of course increased not only in size, but also in number — I now count five: the original three plus the regulatory bureaucracy and the Federal Reserve.)

Not only do you have your choice of chronology, but you also have your choice of metric. Pick whichever one suits your fancy: the size of the federal budget, the budget as a percentage of GDP, the number of federal employees, the number of pages in the Federal Register or the Code of Federal Regulations, the number of bills introduced in each chamber of Congress, the number actually passed, the number of Executive Orders issued. The number of federal crimes, the number of arrests under federal crimes, the federal prison population. The range of quantitative measures is virtually limitless.

Oh, and "federalism" — can't forget federalism. Which of course today means not that the federal government does "federal" things and the states do "state" things, but rather that everybody does everything — and everybody taxes and regulates you in the process. More layers of government interfering in "American life and culture" mean more lawsuits — why does Bork or anyone else find this perplexing?

And this is of course a bipartisan phenomenon. We've seen the tax-and-spend Democrats in Congress lose power to the tax-and-spend Republicans. We've seen Democratic presidents abuse power, only to be replaced by Republican presidents who abuse power in even worse ways. By way of contrast, when was the last major, bona fide judicial scandal, apart from Bork ally Roy Moore? Justice Abe Fortas in 1969?)

And now, suddenly, we're supposed to be worried primarily about the courts dismantling a small fraction of the rest of Big Government? Um, no.

You don't want the Supreme Court handling abortion? Simple — don't pass any abortion laws in the first place. You don't want courts reining in capital punishment? Then base it on reasoned criminal justice science and not on naked bloodlust. You don't want courts sanctioning the unconstrained seizing of private property? Stop seizing one-eighth of almost every worker's paycheck to fund an imploding intergenerational Ponzi scheme. You're displeased with judicial interference with schools? Stop propping up (and now federalizing) a dysfunctional education system.

You don't want the courts "inventing new rights" under the Fourteenth Amendment? Then acknowledge that those rights already existed under the Ninth Amendment and abandon your insolent "inkblot jurisprudence."

Concerned about courts striking down anti-gay laws and bigot amendments to state constitutions? Then don't place mob rule above individual rights and sully the most basic founding principle of our country.

Speaking of which: in the more narrow context of gay rights, I blogged the following:

If gays are left with no other option than to sue for their equal rights, then no one has a right to be surprised when that's exactly what they do. If anti-gay factions oppose gay rights lawsuits, then perhaps they shouldn't be paving a one-way street straight to the courthouse door.

That advice isn't limited to the anti-gay bigots, but to all those who decry so-called "judicial activism." If you don't want the courts correcting your mistakes, then stop making mistakes in the first place.