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Is the Judiciary Out of Control? / The Reviews Are In! The Washington Post Says…; the National Journal Proclaims; and the Austin American-Stateman Heralds…

March 4, 2003

For Immediate Release
March 4, 2003

Contact Information:
Amanda Cooper, 212 998–6736

Is the Judiciary Out of Control?
The reviews are in! The Washington Post says…; The National Journal proclaims; and the Austin American-Stateman heralds
As President Bush nominates judges to the federal bench, and a Supreme Court vacancy looms on the horizon, now is the time to consider this question.

In The Myth of the Imperial Judiciary: Why the Right is Wrong about the Courts, Mark Kozlowski refutes the claim made by many conservatives that the federal courts have abandoned their legitimate role as neutral arbitrators and are instead imposing liberal policies and values upon society. Kozlowski takes a realistic look at the role of the courts in our democracy to show the vision of judicial power promoted by conservative pundits is skewed.

The Conservative Claim

For quite some time, conservatives have claimed that through court decrees, liberal judges are winning victories that liberal politicians have been unable to win at the ballot box. They argue that court decisions that create rightsreproductive rights, rights of criminal defendants, rights for the poor, etc.have no basis in the law. Those on the Right make alarmist claims that decisions that are supposed to be made by the electorate and its representatives are now made by judges who have consciously decided to use judicial decisions to further liberal values.

Refuting the Conservative Claim

In The Myth of the Imperial Judiciary, Kozlowski, former Associate Counsel at the Brennan Center for Justice at NYU School of Law, demonstrates that the conservative argument fails the test of realism on several grounds:

  • The Argument Against Originalism

    In dealing with questions of constitutional rights, conservatives assert that judges should be bound by the text of the Constitution and the specific intent of its framers; an approach to constitutional decision-making called “originalism.” Kozlowski shows that the framers of the Constitution did not expect later generations to be bound to their intent. Indeed, they knew and welcomed the fact that the constitutional text would be subject to differences in interpretation. Moreover, if conservatives would better investigate the work of originalist scholars and judges, Kozlowski argues, they would see that they themselves often reach no consensus about constitutional meaning.

  • At Odds With the Historical Record

    Many conservatives believe that the power of the court in the American polity was marginal (i.e. the weakest branch of government) until the Warren Court ushered in the supposed Imperial Judiciary. Kozlowski demonstrates that the courts have in fact played a substantial role in our politics since the beginning of government under the Constitution. Moreover, conservatives grossly overstate the extent to which the Warren Court (and successor courts) expanded the rights of disfavored minorities, such as the poor and criminal defendants. On the contrary, Kozlowksi shows that in so far as the Warren Court expanded these rights, the successor courts and Congresses have contracted them.

  • The Role of Congress

    The Myth of the Imperial Judiciary also illustrates the failure of conservatives to acknowledge the power conferred upon the courts by Congress. In fact, Congress has directed that the actions of a vast array of regulatory agencies shall be subject to judicial review. Further, says Kozlowski, to the extent that rights have been “created” over the past decades, they have largely been created by statute; think of the array of federal statutes mandating non-discrimination in housing and employment. Congress has mandated that these statutes be enforced through the courts; that is, persons who believe they have been discriminated against are directed to file lawsuits. One may think that giving such power to the courts is a bad idea, but one cannot say that the courts have grabbed such power for themselves.
A Timely Issue

The Myth of the Imperial Judiciary is especially relevant as the role of the courts has become a central issue in todays politics. It is manifested in the struggles that have already taken place over the confirmation of President Bushs nominees to the federal bench, and will take center stage if the president has the opportunity to fill a vacancy on the Supreme Court. Conservatives still claim to be correcting an ideological imbalance as they pack the court with likeminded judges, but in fact many currently sitting conservative judges, including the majority of the Supreme Court, have already begun engaging in a new type of judicial activism. The traditional conservative focus on judicial restraint and deference to elected officials has been replaced by a version of federalism which challenges the authority of Congress.

Kozlowski demonstrates that a more realistic approach will emphasize that a healthy debate about the role of courts must begin from a realistic assessment of how much power courts have historically exercised in our polity, how much power they actually possess, and the reality of partisan politics. Mark Kozlowski is a clerk for the Hon. Rosemary Pooler of the U.S. Court of Appeals for the Second Circuit. He wrote The Myth of the Imperial Judiciary while Associate Counsel at the Brennan Center for Justice at NYU School of Law. Mr. Kozlowski has a Ph.D. in Political Science. His writings on judicial independence have appeared in publications such as The New York Times, Boston Herald, and Legal Times. Anthony Lewis is a former editorial columnist for The New York Times.

Available Now!

The Myth of the Imperial Judiciary: Why the Right is Wrong about the Courts
Mark Kozlowski
293 pages / ISBN: 0–8147–4775–2/ cloth / $29.95
Publication Date: February 25, 2003
Contact: Amanda Cooper, Brennan Center for Justice, 212.998.6736,


Mark Kozlowski will tour to Washington, D.C. and New York City in February and March, 2003 to promote the publication of The Myth of the Imperial Judiciary: Why The Right is Wrong About the Courts. To set up an interview with the author, please contact Asha Curran at 212.472.2958 or .