Thomas Sowell

WHILE giving a talk in far-off Australia on February 1st, U. S. Supreme Court Justice Ruth Bader Ginsburg may have thought it was safe to take a cheap shot at a fellow American back home. Nor was she restrained by the fact that what she said was a lie.

Back in 1997, Congressman Tom DeLay (R-Texas) said, "when judges exercise powers not delegated to them by the Constitution, impeachment is a proper tool." He cited as an example, a judge who ordered a tax increase in Kansas City. "Do judges have the authority to raise taxes?" he asked. "Of course not."

In Australia, however, Justice Ginsburg declared: "Tom DeLay has advocated the impeachment of judges who render unpopular decisions that, in his view, do not follow the law." She added, "Mr. DeLay is not a lawyer but, I am told, an exterminator by profession."

Perhaps an academic audience at the University of Melbourne law school might find it amusing to disdain a non-academic, non-lawyer who dared to question one of the anointed, but anyone whose home has been threatened by termites might have a better appreciation of someone who did useful and vital work in the real world, even if not in the rarefied atmosphere of academia.

Justice Ginsburg's disdain was not unrelated to the very problem that Congressman DeLay complained of, arrogant over-reaching by judges who impose their own presumptions on others, while claiming to be enforcing the law.

This issue is much bigger than Justice Ginsburg and Congressman DeLay put together.

Over the past half century, far too many judges -- including justices of the Supreme Court -- have "interpreted" laws to mean the direct opposite of what the written words of those laws plainly said. You don't need a law degree to know that, when the Civil Rights Act of 1964 forbad group preferences and quotas, Justice William Brennan's "interpretation" of it 15 years later in the Weber case to permit group preferences and quotas was an exercise in raw judicial power, based on sheer gall and a defiance of anybody to do anything about it. One of the dissenting justices likened Justice's Brennan's evasion of the law to the great escapes of Houdini.

It is not a question whether group preferences and quotas are popular or unpopular, good policy or bad policy. It is a question whether courts of law become arenas for arbitrary exercises of power -- the very antithesis of law.


Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

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