No one is checking a historical trend as disturbing as anything else because our attention is focused on other injustices that surround us 24/7. No doubt, judicial power has grown quietly and discreetly over time. Federal judges seem to have the power to overturn state bans against gay marriage when state legislatures create laws defining marriage as that between a heterosexual man and woman. That seems like an expansion of the civil rights of a particular minority group in society, such as same-sex couples, and therefore something positive in the American experience.
The recent Supreme Court ruling effectively making same-sex marriage a nationally protected right is a seismic event - at once social, political and culture - many have been awaiting for decades. But judges can also jeopardize individuals' ability to put forward legitimate legal complaints by increasing the dismissal of allegations that do not meet a certain factual standard of plausibility. This is what the Ashcroft v. Iqbal (2009) SCOTUS decision initiated. This means a higher percentage of judges' motions to dismiss complaints, particularly when it comes to due process violations of individual rights and the right to be free from discrimination on the basis of race and religion. What's going on here? How does civil rights expand or contract while judicial power only seems to expand?
People elect representatives to make laws, which lies at the heart of our legislative branch of government. The executive branch enforces those laws, sets the foreign policies, and is primarily responsible for the protection of citizens from internal or external attacks. The judicial branch interprets the laws and activities of both branches to assess whether they uphold what is legally permissible within the constitution; or they can examine what breaches rights, which are protected in principle, by interpreting either the eternal literalism or historical contextualism of the constitution. One can hypothesize that as a democracy ages, say like the U.S.'s, it also atrophies in one dimension: whereby the power of the people to maintain the 'balance of powers' between the branches gives away to an excessive ceding of power to one branch, which goes unmonitored, in this case that of the judiciary.
For example, watchdog groups and whistleblowers can bring constant attention to elected officials to check for crime and corruption. Occasionally an elected official is held to account as in the case of Senator Menendez from New Jersey. Political activists can use public media futilely or effectively to put a spotlight on lobbying groups financed by corporations: those lobbying groups exist to protect corporations from individual complaints of liability and inversely creating legal loopholes for corporations to expand their profits at the expense of the well-being of individuals, groups and their social and natural environments. The political debates swirling around President Obama's push with the Republicans on the passing of the Trans-Pacific Partnership involving 12 nations and 40% of the global economy is a case in point. People worry when there is no real public deliberation in the creation of these massive platforms to which only corporations seem to be privy. So yes, the legislative and executive branches are scrutinized and challenged but only the judiciary has the power to truly check their excesses. But who or what can check the expansion of an appointed - not elected - judiciary and what does that say about the evolution of democracies, particularly one of the three oldest in modern history, namely the United States?
One can argue that the interpreters of the law, namely judges and courts, exist in an independent reality in which only their 'judicial experience and common sense' exist (Aschcroft v. Iqbal). One can take it a step further, the only reality of the interpreter of the law is language itself and hence a turn of a phrase has the power to alter our social reality and shape the social contract democratic people require in order to live in peace and harmony. Citizens of democracy agree to live by the laws they make. But what happens when the self-interpretation of the law by a few individuals makes all human beings what they are and can do by defining what they are entitled to in terms of basic 'rights' and what they must forgo?
People elect officials in a representative system of government; but they do not directly appoint judges as that falls to the elected officials, say when a President appoints a Supreme Court Justice. Politics in principle should not play a role in such a decision even though we all know that it does, say the selection of a justice with liberal or conservative leanings. And judges are human beings regardless of the natural tendency to accord them transcendental status. Yet the law is supposed to be based on precedent, tradition, logic, reason and objectivity, not political whim. But the power of this alleged apolitical neutrality of the law cannot completely conceal the growth of judicial power when 'reason, tradition and objectivity' become the means to protect the judiciary from external scrutiny. Simply put, the paradox is that citizens of a maturing democracy seem to lose power to question the expansion of judicial power. And the paradox is not as simple as it looks.
It could well turn out that the real fear of losing our basic political and civil liberties - as individuals endowed with the very same constitutional rights the judiciary seeks to protect - is not the same fear libertarians speak of when they talk about the intrusion of 'big government.' That speaks to the rising confluence of corporate and lobbying power, the paralysis of the two-party legislative system, namely the Congress and what many independents deem as its dysfunctionality today, and the expansion of presidential powers to wage unilateral wars and create federal acts that condone spying on citizens. In that light, some scholars argue that America no longer fits the classic definition of a democracy: that is when it comes to shaping and executing the legislative agenda. But this is not the argument being made here. No instead, the real fear of eroding the substance of our democratic will is the loss of power to an expanding dominion of the judiciary, which, ironically, exists to check the power of government itself. And it is this inscrutable paradox of a seemingly invisible unchecked power - that is supposed to protect against visible power going wildly unchecked - that haunts us today. We seem to lack the conceptual ability and critical analysis to understand why human beings decided to trust in the 'Spirit of Laws' to quote Montesquieu at the dawn of democracy as a new form of government and society over two centuries ago. For democracy promised freedom and equality of all individuals under the law; what it could not predict is that the law, which protects us from one another, is also what we the majority must be protected from when it grows in the hands of a few.