What one man in America can decide that prisoners in South Carolina need croquet fields and backgammon tournaments and order the state to provide them? What one man can decide that Kansas City schools need Olympic-size swimming pools, a planetarium, a model United Nations wired for language translations, a temperature-controlled art gallery, and movie editing and screening rooms, then issue $500 million in bonds to pay for them and double Kansas City real-estate taxes to pay for the bonds? If you answered, "a federal judge"—you are right.
The power wielded by these judges has provoked some remarkably frank criticisms of the judiciary. Federal judges are a "robed, contemptuous intellectual elite," according to Republican Senator John Ashcroft of Missouri. Ashcroft, chairman of a Senate Judiciary subcommittee, said he would hold hearings to examine situations "where the people's will has been set aside by the courts" and to design checks on activist judges. Representative Tom Delay of Texas wants to impeach judges who are "arrogantly overriding the people's will." These judges, he notes, have overturned referendums—dealing with immigration costs, affirmative action, homosexual preferences, and school busing—adopted by the people of California, Colorado, and Washington. Is Senator Ashcroft right? Have federal judges really become a threat to popular government?
Judicial...