Against Judicial Imperialism

by Karl Rove - November 11, 2005 - The Wall Street Journal

The Federalist Society speech

I've thought long and hard about the best way to begin the formal portion of my remarks. The consistent advice I got was to start my remarks in a way my audience will find comfortable, familiar and reassuring. That sounds about right to me. So here goes: My name is Karl--and I am a nonlawyer.

I say that with no sense of superiority. Instead, I offer it as a reminder of what must be a painful point for all with a J.D. 99.7% of all Americans are nonlawyers. We may not have the power, but we nonlawyers are the majority. And it is clear today that many ordinary men and women--nonlawyers--believe our courts are in crisis. And their concerns are well-grounded.

I am quite certain that this speech will be rejected by those who support the liberal / progressive judicial philosophy that has dominated our courts, and the trial lawyers lobby, for nearly 3 generations. Actually re-reading that sentence, I suspect that "rejected" might not be quite strong enough a term.

The person giving the speech might also create a certain amount of animosity among liberals. Karl Rove is given a lot of credit by those on the left for "conning" America. Their belief that he can con them means they "reject" him too. Once again "reject" might not be strong enough a term!

I share Karl's belief that our courts are currently getting better, but I am afraid I do not share his belief that we will end up where we need to be. As the courts become more conservative, we are seeing more and more the willingness to legislate conservative causes from the bench. Justice Scalia clearly violated his own principles with his willingness to over-rule state legislatures and jam drug law he supported down the throats of an unwilling populace. Will this be the consequence of more conservative judges, "conservative" activism?

I am not willing to trust any group of judges as long as a single federal judge, with the acquiescence of 5 supremacists, can re-write any law. In fact we continue to be exposed to the reality that these same 6 people can change the American Constitution at their whim. This must end. We need a constitutional amendment that gives the executive branch and the legislative branch power to limit the totalitarian excesses we have endured for the last three generations.

Only a unanimous Superme Court should be able to declare a law unconstitutional and any law struck down by such a ruling must strike the entire law as passed. That is needed so that the executive branch and legislative branch can overcome the current disparity in the balance of powers.