Is the Judiciary Above Criticism?

Former U.S. Solicitor General Theodore Olson had an op-ed piece in Saturday’s Wall Street Journal that is worth reading. In it he stands as a voice of reason advocating the virtues of our independent judiciary and appealing for cooler heads, civility, and respect of the judiciary so that judges can continue their important work unencumbered by untoward criticism.

I found that reading the responses to Mr. Olson’s article was more enjoyable, insightful, and informative than reading the article itself (even if some writers’ grammatical skills were less than perfect).

Some of the more sanguine responses included comments like:

• “With judges, as with any other profession, if you want my respect, earn it” (Rick Irving – Atlanta).


• “Mr. Olson's premise that the federal judiciary is respected has no basis in reality for a significant portion of the population” (Harold Finton - Charlotte, NC).


• “Your article is evidence that the effectiveness of our criticism is just beginning to be noticed” (Elliott Reed – Phoenix).


• “You sir, as an attorney, are indeed a member of that select group who think you are the only ones with intellectual capacity to read and understand the Constitution” (Ruth Skidmore - Plymouth, CA).


• “[Mr. Olsen’s] comments are mindful of the disbelief of Crown and Parliament in the 1760s and 1770s that the American colonists could have any squawk about their treatment by the British” (Joseph Revell - Pensacola, FL).

William Woodford of Little Rock starts with, “What planet has Mr. Olson been living on?” He concludes with:

As a practical matter, contemporary American jurisprudence holds that the law is whatever the lawyers say it is, no matter what the statutes or precedents say. This is called "gaming the system," and it has led to a system of arbitrary justice that has become the rule of men rather than the rule of law. Despite this, Mr. Olson argues that there is no need for someone to guard the guardians.

Many readers hammered away at judicial decisions based in foreign law and decisions that effectively destroy the true intent of the Constitution.

• “For over six decades now, enough higher court judges have independently served the political agendas of socialist liberalism to render our Constitution virtually ineffective and unrecognizable compared to it's original form, intent and protections” (Carl Withrow – Manassas, VA).


• “If a neutral observer were to read the Constitution and then to observe the state and scope of the Federal government today, he would have to come to the conclusion that we have become a nation governed by rule of men, not by rule of law” (Kevin Mawn – Marietta, GA).


• “The Founding Fathers said and wrote nothing about judges being gods. That came later when liberal activist judges starting using their cherished and concise U.S. Constitution as a Ouija Board” (Duane Speight – Prosperity, SC).

I suppose my favorite response came from Harold Finton of Charlotte, NC, who wrote:

Too many people have not respect for the judiciary. That lack of respect comes from their arrogance and abuse. Pretending they are gold-plated gods is no longer working. It is time to treat a few of them like disposable paper plates. It will put the fear of pension loss in the rest of them. And that would be a good thing.

Mr. Finton concludes with a call to arms of sorts, saying, “It is time to throw down false idols. It is better to worship at the altar of liberty than to bear the yoke of judicial tyranny.”

A significant portion of the population is fed up with the current state of the judiciary. They are well informed and are politically active. They have been around for a long time, but for years they have felt impotent to do anything about the situation. Now they sense an opportunity to actually make a difference. Mr. Olson wants these people to return to irrelevance, but that’s not going to happen. The elites may stick their heads in the sand about judicial activism, but the longer they ignore the issue the stronger the backlash will become.

Hat tip: Artful criticism of Justice Ginsburg's position of relying on foreign law to interpret the U.S. Constitution.

Hat tip: Thomas Sowell comments on Theodore Olson’s article.