The Myth of the Imperial Judiciary: Why the Right is Wrong about the Courts

Few institutions have become as ferociously fought over in democratic politics as the courts. While political criticism of judges in this country goes back to its inception, today’s intensely ideological assault is nearly unprecedented. Spend any amount of time among the writings of contemporary right-wing critics of judicial power, and you are virtually assured of seeing repeated complaints about the “imperial judiciary.” American conservatives contend not only that judicial power has expanded dangerously in recent decades, but that liberal judges now willfully write their policy preferences into law. They raise alarms that American courts possess a degree of power incompatible with the functioning of a democratic polity. The Myth of the Imperial Judiciary explores the anti-judicial ideological trend of the American right, refuting these claims and taking a realistic look at the role of courts in our democracy to show that conservatives have a highly unrealistic conception of their power. Kozlowski first assesses the validity of the conservative view of the Founders’ intent, arguing that courts have played an assertive role in our politics since their establishment. He then considers contemporary judicial powers to show that conservatives have greatly overstated the extent to which the expansion of rights which has occurred has worked solely to the benefit of liberals. Kozlowski reveals the ways in which the claims of those on the right are often either unsupported or simply wrong. He concludes that American courts, far from imperiling our democracy or our moral fabric, stand as a bulwark against the abuse of legislative power, acting forcefully, as they have always done, to give meaning to constitutional promises.

About the Author :
Mark Kozlowski is Associate Counsel at the Brennan Center for Justice at NYU School of Law, with a Ph.D. in Political Science. He writes about issues of judicial independence on behalf of the Center. His work has appeared in publications such as The New York Times, Boston Herald, and Legal Times, and he is recognized by leading media nationwide as an expert on the judiciary. Anthony Lewis is a former editorial columnist for the New York Times.

Review :
Neatly exposes the right-wing myth of the imperial judiciary as a contrived morality play, in which federal judges have been assigned the role of villainous foils. As with all morality plays, the script of this one reveals far more about its partisans than it does about the caricatures they rail against. This thoughtful book will appeal to readers across the political spectrum An invaluable source . . . for anyone interested in navigating the judiciary's politics. With engaging writing, provocative ideas, and compelling arguments, Mark Kozlowski has taken on the lions of the legal right and their defendersAntonin Scalia, Robert Bork, George Will, and many othersand left them bruised and bloodied. This is a work at the intersection of law and politics that is a real page turner, for lawyers and non-lawyers alike. The Myth of the Imperial Judiciary makes a formidable argument that conservatives indeed have an unrealistic conception of the Supreme Court.