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Jewish World Review Dec. 12, 2000 / 15 Kislev, 5761

Thomas Sowell

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No stinkin' badges?

http://www.jewishworldreview.com -- IN THE OLD MOVIE CLASSIC "The Treasure of Sierra Madre," armed men confront Humphrey Bogart, claiming to be police.

"If you're policemen," he asked, "where are your badges?"

"We don't need no stinkin' badges!" is the reply.

On December 1st, the Supreme Court of the United States asked the Florida Supreme Court to tell them what legal authorization they had for ordering a recount. No answer. But, exactly one week later, the Florida Supreme Court again ordered a recount. What they were saying to the U. S. Supreme Court was: "We don't need no stinkin' authorization!"

The Florida Supreme Court's own chief justice, in a bitter dissent, said that the 4-3 majority's decision "has no foundation in Florida law." They don't need no stinkin' foundation! Another dissenter, Justice Harding, declared that, under the Constitution of the United States, "neither this Court nor the circuit court has the authority to create the standards by which it will count the under-vote ballots." They don't need no stinkin' standards!

Long before this election, the Florida Supreme Court was notorious for its headstrong judicial activism. They have gotten away with exceeding their authority for so long that it may be hard for them to accept that they are still under the law, just like everyone else. As far as they are concerned, they don't need no stinkin' badges.

One of the reasons judicial activists get away with ignoring the law and imposing their own pet notions instead is that much of the mainstream media treat the actions of judges as automatically legitimate and all criticism of them as undermining the rule of law. Even after the United States Supreme Court said that the Florida legislature has every right to select who to send to the electoral college as the state's electors, great outcries continue about what a terrible thing this would be.

It was not the Florida legislature, but the Florida Supreme Court, which has turned a simple close election into a constitutional confrontation.

If anything good comes out of all this, it may be a demonstration of what chaos can be generated by a few judges who rush in where angels fear to tread, and take over the decisions which the written law gives to executive officials like the Secretary of State or to the state legislature. Whether in Florida or elsewhere, this is done by verbal sleight-of-hand. Anyone whose authority the judicial activists want to usurp can be cynically declared to have "abused" his or her authority, thus allowing judges to take over and make decisions that the law gave to others.

Judicial activists around the country have ignored the constitution's separation of powers in order to become the grand second-guessers of everybody else, whether executive, legislative or private.

They do this by pretending to "interpret" the law -- even when they interpret the law to mean the direct opposite of what its plain words say. This has been the pattern of judicial activists at all levels, including too many U. S. Supreme Court justices. Justice William J. Brennan's "interpretation" of the Civil Rights Act of 1964 to permit quotas and preferences that it plainly forbad was a classic of this sheer brass in the Weber case in 1979.

The time is long overdue to stop regarding judges as little tin gods who can do no wrong. An independent judiciary does not mean a judiciary independent of the law. If it does, then we can forget about being a free and democratic nation. We are just the serfs of whoever happens to be on the bench.

What choices have the judicial activists left us? Other officials could disregard the courts, as President Andrew Jackson did when he said, "John Marshall has made his ruling. Now let him enforce it." But that would be answering cynicism with cynicism -- and no society can survive on sheer cynicism.

We could just bow to our betters on the bench and relinquish the freedom that so many Americans have died to protect. Or we could start impeaching judges who overstep the bounds of the law.

The spin will be that politicians are just punishing judges for decisions that they don't happen to like, when in fact judges would be removed for violating their oath of office by failing to follow the law. Are we afraid to face a little spin to protect what others before us have faced death for?

JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, A Personal Odyssey.

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