It's amazing what one can accomplish with a law degree, a black robe and limited accountability. And, therein, lies the problem.
Increasingly, we the people are being ruled, not by our readily accountable elected officials, but by unelected jurists with limited accountability. As a result, our constitutional republic is rapidly being transformed into a judicial oligarchy in which the judicial branch of government is increasingly becoming more equal than the others.
America's Founding Fathers never intended such a result. Alexander Hamilton and James Madison wrote in Federalist No. 78 that, in a government characterized by separation of powers, "…the judiciary…will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive…holds the sword of the community. The legislature, not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary…may truly be said to have neither FORCE nor WILL, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."
The founders, thus, envisioned the judiciary as the "weakest of the three departments of power", thereby posing the weakest threat to our liberties. Much has changed since our Constitution was adopted, however, and the judiciary, having arrogated unto itself powers rightly belonging to the executive and legislative branches, currently represents the biggest threat among the branches to our liberties. Hamilton and Madison acknowledged this threat by stating, "[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers."
When judges make law from the bench, they short circuit the democratic process. Even if the end result appears to be a desirable outcome, it comes at the expense of representative government. In a democracy, the process is no less important than the product. Robert Bork in his book, The Tempting of America, observed, "The democratic integrity of law…depends entirely upon the degree to which its processes are legitimate…. Those who would politicize the law offer the public, and the judiciary, the temptation of results without regard to democratic legitimacy."
Sadly, executives and legislators have been complicit in this accretion of power in the judiciary. In the politically charged environment in which we live, elected officials have, all too often, been too willing to let the judicial branch of government make the final call on tough decisions involving political hot-potatoes—abortion, homosexual rights, prayer in schools, etc. They think that if the judicial branch makes the calls, the political branches will be immunized from the adverse political fall-out. Therefore, rather than acting to check and balance a run-away judiciary, the political branches all too often defer to imperious court rulings that misrepresent the requirements of state and federal constitutions.
The executive and legislative branches must act to end the hegemony that the judicial branch has acquired through distorting the requirements of the Constitution. Judges, no less than legislators and executives, are capable of running afoul of the Constitution. When they do, the other branches should act decisively to check their excesses. If they don't the people should replace them with those who will.
Nothing less than the future of our representative republic hangs in the balance.