The Myth of the Imperial Judiciary: Why the Right Is Wrong about the Courts

The Myth of the Imperial Judiciary: Why the Right Is Wrong about the Courts

The Myth of the Imperial Judiciary: Why the Right Is Wrong about the Courts

The Myth of the Imperial Judiciary: Why the Right Is Wrong about the Courts


This thoughtful book will appeal to readers across the political spectrum." - Harvard Law Review

"An invaluable source... for anyone interested in navigating the judiciary's politics." -

National Journal "The Myth of the Imperial Judiciary makes a formidable argument that conservatives indeed have an unrealistic conception of the Supreme Court." - Austin American Statesman

"Kozlowski marshals history to show that not only was a strong and active judiciary intended by the Founding Fathers, but also that it has served the nation extremely well." - Chicago Sun-Times

"Kozlowski effectively demonstrates that courts have far less power to operate as free agents than many believe." - Law and Politics Book Review

"Kozlowski marshals history to show that not only was a strong and active judiciary intended by the Founding Fathers, it has served the nation extremely well.... A fine piece of scholarship." - Washington Post

"How many minds his book will change on a subject so charged with emotion remainds dubious, but the points Mr. Kozlowski makes so expertly cannot in fairness be ignored." - New York Law Journal

Few institutions have become as ferociously fought over in democratic politics as the courts. While political criticism of judges in this country goes back to its inception, today's intensely ideological assault is nearly unprecedented. Spend any amount of time among the writings of contemporary right-wing critics of judicial power, and you are virtually assured of seeing repeated complaints about the "imperial judiciary." American conservatives contend not only that judicial power has expanded dangerously in recent decades, but that liberal judges now willfully write their policy preferences into law. They raise alarms that American courts possess a degree of power incompatible with the functioning of a democratic polity. The Myth of the Imperial Judiciaryexplores the anti-judicial ideological trend of the American right, refuting these claims and taking a realistic look at the role of courts in our democracy to show that conservatives have a highlyunrealisticconception of their power. Kozlowski first assesses the validity of the conservative view of the Founders' intent, arguing that courts have played an assertive role in our politics since their establishment. He then considers contemporary judicial powers to show that conservatives have greatly overstated the extent to which the expansion of rights which has occurred has worked solely to the benefit of liberals. Kozlowski reveals the ways in which the claims of those on the right are often either unsupported or simply wrong. He concludes that American courts, far from imperiling our democracy or our moral fabric, stand as a bulwark against the abuse of legislative power, acting forcefully, as they have always done, to give meaning to constitutional promises.


Anthony Lewis

Political criticism of judges in this country goes back at least as far as Thomas Jefferson, who called federal judges “sappers and miners” working to undermine the constitutional system. (He did not like Chief Justice John Marshall’s expansive view of federal power.) From time to time ever since, judges have been political targets. In the 1930s, there was President Franklin Roosevelt’s struggle with the “nine old men,” as critics called them, who had held some of his New Deal legislation unconstitutional. In the 1950s and 1960s, billboards in the South said “Impeach Earl Warren” because of the Warren Court’s decision against racial segregation in public schools.

But I doubt that we have ever had as sustained, as broad, or as intensely ideological an assault on the courts as we have today. The targets include judges at all levels, state and federal. Some of the attacks challenge courts as an institution, their independence, and their function. The assault includes verbal brickbats of all kinds and more than words: restrictive legislation, threats of impeachment, and refusal to confirm judicial nominees.

The tone of the attacks is strident. Judges are denounced as “totalitarians” who “threaten to undermine our nation’s moral fabric.” That last phrase came from Steve Forbes, the sometime candidate for the Republican presidential nomination, who used it in condemning an abortion decision of the Arizona Supreme Court. The theme of judicially imposed moral decay is often sounded. It is central in the denunciatory works of Robert Bork, former law professor, judge, and failed Supreme Court nominee. “American courts,” Judge Bork wrote, “enforcing liberal relativism, are leading the parade to Gomorrah.”

The assault on the courts comes mainly from the ideological right. Its code word for judges it condemns is “activist.” That is a slippery word, hard to define with any firm content. It suggests judges who disregard . . .

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