The Dangers of Judicial Hubris

Never in recent history have the courts looked so much like another bunch of partisan players in the political wars, camouflaged in black robes that cannot hide their partiality and willfulness. The worst may be yet to come: A 5-4 U.S. Supreme Court decision this week anointing George W. Bush president–with the more conservative justices outvoting the more liberal ones–would be hard to see as anything but evidence that either the majority or the dissenters (or both) were swayed by politics, not law. And although I haven’t altogether given up hope for a unanimous decision, the smart money is betting on a bitter 5-4 split as the oral arguments (at 11 a.m. ET Monday) approach.

Election 2000–with the Republican-controlled Florida Legislature in open revolt against the Florida Supreme Court, with top Republicans in Washington trashing the Florida court as a bunch of political hacks, with top Democrats intimating the same of the 5-4 U.S. Supreme Court majority that stopped the Florida court’s manual recounts in an interim order Saturday, with some of the justices themselves lobbing thinly veiled charges of hypocrisy back and forth–has been a disaster for the judiciary’s image (at least in some circles) as politically impartial. The election aftermath may also have started a cycle that could destabilize the rule of law for years to come by launching a new era of warfare between imperial judges and other branches of government. The backlash against the Florida judges–and against others across the nation who are deemed to have usurped legislative and executive powers–will reverberate for a long time, in ways both foreseeable and unforeseeable.

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