"Judge Not"

This essay by Philip Kenicott, "Judge Not," from today's Washington Post, asks whether (what the author sees as) the outbreak of hostility to the persons and work of judges in popular discourse -- particularly among religious conservatives -- should worry Catholics, academics, and others who -- like judges -- inhabit spheres that are "protected" from the "leveling power of untrammeled democracy":

It's curious . . . the degree to which anti-judicial rhetoric borrows the language of anti-Catholicism. It's especially odd, today, that these (perhaps subliminally) anti-Catholic ideas persist in a debate that has aligned Catholics with traditional social conservatives over cases concerning abortion, homosexuality and euthanasia. The Catholic Church, though it may today be in agreement with conservatives on many social issues, has long been on the receiving end of rhetoric remarkably similar to that being directed at the federal judiciary. It has been derided as anti-democratic, for standing apart from the mainstream of American life, for importing "foreign" elements into American culture, for being intellectually superior, and governed by rules and values characteristic of an arrogant, priestly class.

Is this anti-Catholic terminology merely accidental? All the derisive talk of elite priesthoods is probably meant as no particular slight to Catholics. But that might be of little comfort if the interests of the Catholic Church and anti-judiciary activists ever diverge -- if, for instance, the Church (or any other church) ever needs to rely on the federal judiciary to protect it from legislative persecution. And if the anti-elitist rhetoric directed at judges today isn't just an occasional flare-up of ire sparked by particular decisions, but part of a broader ideological agenda within American public life, then other institutions that resemble the judiciary, and the Catholic Church, may have reason to be concerned as well.

Academia, which is also an institution set apart from the mainstream of American life, given to unpopular pronouncements and governed by rules that elevate and protect for life the tenure of often arrogant individuals, has already found itself under legislative attack. The leveling power of untrammeled democracy has a voracious appetite -- which is one of the arguments for creating spheres that are protected from its power.

Kennicott makes an interesting point, though it should be noted that there is no inconsistency between (a) worrying about the "voracious appetite" of the "leveling power of democracy" and (b) worrying about the decisions and attitude of judges who appear to be exceeding the scope of their (arguably un-democratic) power.  The complaint about judges is (or, at least, should be) not that they are judges, or that they are not elected, or that their rulings go against popular opinion; it should be that some are handing down excessively ambitious and legally incorrect rulings in contexts and with respect to issues to which their authority does not properly extend.  To think that not-democratically-accountable power is worrisome in some contexts (for example, the debate over whether or not a community should embrace a sweeping abortion license) is not (necessarily) to endorse "democracy" in all other contexts (for example, the debate over the divinity of Christ).

Rick